Unrestricted Concealed Carry is a Bad Idea

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

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

Shark on Dead Tree

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

Capitol Security

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

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

A Sunday in May?

Hard to tell by stepping outside today.



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



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



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

Recount Follies Continue

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

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

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

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

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

Looks like that case may have had legs after all.

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

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

A Reverse Gore

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


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

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

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

Missing the Point - A Few Examples

One of the fascinating things about our recent contretemps over public employee compensation has been the remarkable lack of self awareness on the part of public employee unions. Two cases in point. Jay Bullock, who I have always thought is a good guy and a smart writer, says that Scott Walker "lies." The jumping off point seems to be an isolated in which Walker said that all he was asking was additional (and rather modest) contributions to their pensions and health insurance.

Not so, says Jay, the budget repair bill eliminates the right of public employee unions to bargain on matters other than compensation. Absolutely true but I don't know that it is fair to say that Walker has "lied" about that. Picking a single statement that is not complete or fully qualified when the peron in question has made many other statements that fully explain the matter at hand is a cheap blogger trick unworthy of Jay. The Governor has explained many times why that is necessary to restrict collective bargaining and how it impacts budgetary issues.

Here's the lack of self awareness part. Jay goes on to demonstrate just why Walker is right. He attempts to illustrate the MTEA contract's breadth by noting that it is 258 pages long. Jay - dude - that's not a refutation of the need for reform. It is proof of the need for reform. No one - and I mean no one - needs a 258 page employment contract. Jay's suggestion that it must be so "to make sure that the best education for our kids is happening at all times" would be laughable if the fact that he apparently believes it wasn't so sad.

All sorts of things get done in this world - supercomputers are built, sattelites are launched and hearts are transplanted - without 258 page employment contracts. In fact, I would argue that, in addition to costing school districts tons of money, this micromanagement of working conditions is one of the reasons that we have seen fifty years of enormous increases in the funding of public education coupled with a general decline in the performance of public schools.

Jay seems to think that things like teacher mentoring programs or procedures for handling assualt on teachers to specifications of the length of the school day will all be eliminated if they aren't in a collective bargaining agreement. Note to Jay: all of these things exist in non-unionized environments. Nonunionized employers do all sorts of things to attract and retain workers and provide services and products that their customers will value. A 258 page contract is not part of the solution; it's part of the problem/

And MichaeL Rosen speculates that Scott Walker wants to raid public employee pension funds. Of course, he can do no such thing. Existing pension funds are legally off limits. This suggests the problem with Rosen's argument that there is no reason to worry about public employee pensions because the state retirement plan is well funded and well managed.

But that only means that the state is currently paying enough into the fund to cover most of the accrued benefits. That's a good thing but has nothing to do with whether the state can afford to continue promising benefits at current levels. It is that question that the Governor proposes to study.

And Rosen ultimately concedes the point although he doesn't recognize it. He concludes by saying that the governor is going to look at public employee pensions because "that's where the money is."

Precisely.

Shark on Fox News

My column on the recount is now up at FoxNews.com.

Assault on the Rule of Law

I thought, for a while, about whether the title of this post was a bit too extreme. My subject is the pressure placed on King & Spalding to drop its representation of the House of Representatives with respect of the Defense of Marriage Act. Gay and lesbian activists pressured the firm in much the same way that the left pressured the local firm of Whyte & Hirshboeck when one of its associates served as local counsel on an amicus brief opposing a procedural challenge to the enactment of the Wisconsin Marriage Amendment.

Unfortunately, it's not too extreme. What happened here is shameful. In succumbing to this pressure, King & Spalding disgraced itself and harmed the profession. In choosing to pressure a law firm for the clients it keeps, the left has taken one more step from the rule of law, civility and an ethos of mutual respect.

There are good reasons to be careful about boycotting or pressuring lawyers for representing unpopular clients. The rule of law applies to the unpopular - even the despised - and one cannot enjoy the protection of the law without a lawyer to secure it.

That's why the title of this post is not extreme.

Easter Songs

All brought to us by the outstanding young Grace Potter & the Nocturnals. Easter being about hope and resistance.



Faith and doubt.



And hope again.

Recount Follies

I'm not going to be too hard on Joanne Kloppenburg for requesting a recount. It's hard to give up something that you have wanted badly, worked hard for and came so close to having - even thinking, albeit rashly and incorrectly, that you had, in fact obtained.

Letting go required facing a very unpleasant reality. It appears she was not up to that. The result will be an expensive tilt at a windmill for the taxpayers (and her donors) and her choice suggests that she may not have the judgment required for the Court. Her references to "suspect" results and the need to restore public integrity were disappointing and her suggestion that there was some need for hand recounts that GAB would request was bizarre. But, then again, we're all human.

I'm not upset about it. It's a colossal waste of money but, in the grand scheme of things, just one more example of that. In fact, recounting Waukesha is probably worth it to shut up the tin foil crowd and the irresponsible politicos among us.

I have less sympathy for those who put her up to it because this is, ultimately, a political act. Democrats are concerned that they will be unable to sustain the anger through the recalls. They believe - probably incorrectly - that this is a way to do it going. Keep the Supreme Court election that proved so useful going and maybe kick up some dust over nothing at all. I have yet to talk to anyone who knows much about these things who thinks that a recount is remotely likely to change the outcome. The reason to ask for one is to not to alter or even confirm the result, but to sustain momentum.

I'm not sure that it works. If it turns out to be the nothing burger than I suspect it will be, it just underscores what is already a bitter defeat. It soaks up money that could presumably have been directed to recalls. It will put the lie - finally - to the Nickolaus conspiracy theories.

On the other hand, I am not a political operative and I assume that some fairly sharp ones on the other side decided that this was worth doing.

Songs for Tax Sunday

We got the 1040 Blues.



Save us save us from this squeeze.



Don't ask them what they want it for.



Everyone's crying for pennies from heaven.

Election Rumination

In the aftermath of last weeek's Supreme Court vote, observers differed as to whether it reflected a significant Walker backlash. My initial impression was that there is little evidence of that. Having looked closer at the numbers, I still think that's the case although, in the end, a final judgment may require numbers we don't have.

One line of argument is that Kloppenburg and Prosser should never have been close. But all that tells us is that the race was transformed into a partisan referendum. With or without an anti-Walker backlash, a partisan referendum will be close because Wisconsin is a sharply divided state. The fact of the matter is that neither candidate had any significant name recognition going in (very few people know who is on the state supreme court)and, once a judicial election becomes salient (i.e.. people start to pay attention), incumbency isn't the advantage that it might be in other types of races. Up until recently, of course, the races rarely became salient. This one became more salient than most.

One argument looks at differences from the February primary to the April general but that is not all that helpful. Turnout in April was wll over three times what it was in February. It was a completely different electorate in April, i.e.. different people were voting,and there is reason to think that the differences were not neutral between Prosser and Kloppenburg.

The nature of those differences was central to the fears of Prosser's supporters coming into last Tuesday. It looked like a perfect storm was aligned in Kloppenburg's favor. In a relatively low turnout election, you had a well organized special interest in an almost unprecedented state of excitement. That special interest is well known for its ability to run the ground game, i.e., get out the vote. (Conservative candidates in spring judicial elections, for example, hate running when there is a race for the Superintendent of Public Instruction.) If additional turnout was comprised disproportionately of members of public employee unions, the race could be flipped from Prosser to Kloppenburg even in the absence of a more general anti-Walker backlash.

To some extent, that is what happened. Dane County may have set a record for turnout in a spring judicial election. It turned out at approximately 82% of its November 2010 turnout and at almost three times the level for the Butler-Gableman race. It went 73% for Kloppenburg. Turnout was up in other counties as well and three counties with heavy student populations (Portage, Eau Claire and LaCrosse) were up as sharply as Dane. While Dane was around 10% of the vote in November, it was 12% in April. Had I known only this, I would have thought Prosser was dead.

What got in the way of the Kloppenburg win was that increased turnout in other counties, while not as strong as Dane, was not limited to disgruntled public employees. The collar counties around Milwaukee County did not come out like Dane - just around 67% of November's vote and a little over twice the numbers for Butler-Gableman - but they came out and went as heavily for Prosser as Dane went for Kloppenburg.

The other factor is that turnout in Milwaukee was up only as much as in the state generally. It was not whipped into the frenzy that gripped Dane and did not go as heavily for Kloppenburg (about 57% as opposed to 62% for Barrett) as one might have expected.

Without Dane, Prosser wins with 52.6% - closer than it might otherwise have been but hardly indicative of a statewide Walker backlash. Of course, one might just as easily back out the heavily Republican WWOzCo. When you do that and take out the populous and heavily Democratic Milwaukee, Prosser wins by around ten thousand votes.

One could say this is evidence of an anti-Walker move. If you back those five partisan counties out of the November vote, Walker still wins handily. So Kloppenburg did significantly better (a bit over five percentage points) in the remaining 67 counties.

The problem with such a conclusion is that, even though turnout in the Supreme Court race was heavy, it was still only about a third of the November turnout. It would be interesting to know how the composition of the electorate differed. If turnout was more heavily composed of union members and Democrats, the backlash story gets more complicated.

A counter-narrative is that conservatives took everything the left has to give and survived. The budget repair bill will become law and Prosser was reelected to the Court. The recalls may change that narrative but they may also confirm it.

Misstatements and Evasions on the Supreme Court Canvas.

Some of the writing in the aftermath of Thursday's developments in the Supreme Court race was either ignorant in cynical. Charges that votes were found, went unreported or were "manipulated" by the county clerk on her personal computer are demonstrably false. No ballotes were discovered. No votes were counted on Thursday that had not been counted on election night. No votes went unreported on election night although some were not included in the aggregate total reported to the AP. Whatever Kathy Nickolaus did or did not do on her personal computer is wholly without official impact. The votes that count reflected on ballots that were removed from the machines and secured on Tuesday evening along with absentee ballots that were also counted and sealed. Nothing on Kathy Nickolaus' computer has anything to do with the certified vote totals. Anyone who says otherwise doesn't know what he or she is talking about it.

I fully appreciate that there are some people who don't care because lies or feigned ignorance is useful. There are others for whom the truth long ago disappeared into an ideological haze. I am more concerned about otherwise responsible members of the press - people who ought to know better - who retreat into the passive voice - "questions have been raised" - or a studied agnosticism - "some say" - to avoid grappling with actually happened. We hear that this "looks bad." That is no substitute for addressing whether it is is bad.

There is no doubt that Ms. Nickolaus' error hurt the process. But misstatements or obfuscations of what happened hurt it as well.

This is Vanilla

Further to my remarks of yesterday, here is why we shouldn't have to worry much about whether the Waukesha vote totals constitute fraud. The adjustment can be corroborated in a number of ways. First, the voter rolls should reflect the higher number of aggregate votes. Second, the machines should reflect the higher number of aggregate votes. Third, the ballots - which were presumably removed from the machines by the inspectors and secured and sealed (s. 7.51(3)) - will reflect the results. Fourth, examination of her computer will reveal that the votes that she reported to the AP did not include the City of Brookfield - where everyone agrees that people cast these votes and that the votes went overwhelmingly for Prosser. Fifth, examination of her computer and that of the relevant official in Brookfield will show that the city's votes were reported to her. Sixth, the city clerk reported these votes on election night.

There were no votes "found" and no change in the official results. It is inaccurate to call what happened a "ballot blunder." It was not a "counting" error. The votes were not overlooked by the inspectors in the City of Brookfield. They were counted and reported to the county clerk. It was an error in reporting to the media by the county clerk. If she would have reported results by municipality on election night, it would have been immediately evident. In fact, in retrospect, those of us who were following the AP results in real time may have seen it happen when Waukesha's number of precincts reporting changed without a change in the vote totals.

If you read the statutorily prescribed process for counting the votes in Chapter 7 of the state statutes, you'll see that there is a mandatory process of verification and reconciliation called "canvassing" that results in certified vote totals. It was during this process that the reporting error was caught.

The canvas always results in changes to the unofficial totals. We usually don't notice them because they don't make any difference in the outcome. This was a very significant - larger than normal - change, but it is very easy to understand. If you want an analogy, think of the question of whether you overreported or underreported the income reflected on your W-2s. It is what it is.

So we ought to verify. But it is eminently verifiable.

The Ground War Ends?

If I'm understanding correctly, the error made by Waukesha's county clerk is easily verifiable. She is not changing Waukesha's official return. She is announcing that the official return will differ from what was reported to the media and explaining why. The official return will presumably match the machine tabulation and the ballots which secured on Tuesday evening. This isn't a question of departing from the machine count or of dicovering new ballots.

Folks should look at it but I suspect that it will be pretty straightforward. Its not clear now that there will be a recount or that a recount would have much chance of changing anything.

On the other hand, the one thing that we have learned to expect in the past few months is the unexpected.

The Ground War Begins

What can we take away from the Supreme Court vote? I think it suggests that the recalls will fail and there is no groundswell of opposition to Governor Walker. The "backlash" is largely a Dane County phenomenon and that is not surprising. Challenge the prerogatives of the company town and the regulars get mad. Dane County had a disproportionate effect because it turned out like crazy in what was still a low turnout election.

I did an interview for Channel 12 tonight in which they shared some numbers in the districts of GOP Senators who are facing recall petitions. You play four quarters but I don't see the GOP losing Senate seats in our part of the state - and probably no where in the state. Whether the Democrats will lose seats is another issue. My best guess is no change.

As far as recalling the Governor, not a chance.

As for the Supreme Court itself, I have no idea what will happen in the recount and neither does anyone else. A shift of over 205 votes out of almost 1.5 million is not only possible, it may even be likely. In the last statewide recall, on a much less salient issue, the tally shifted by over twice that on a vote that was a little over half of what we had here. The question is which way they will shift. Given that the Kloppenburg margin is driven almost entirely by votes in a county that had become an ideological fever swamp (something that is very likely to create issues), I think predicting the outcome is a fool's game.

If Kloppenburg does win, the conventional wisdom has been that the Court will have a 4-3 liberal majority. Maybe but maybe not. The one thing I am pretty sure won't happen is that the divisions on the Court will go away. For a variety of reasons, I think they will be worse and given some things that happened in this race I think the gloves will be off in a way that they have not been to date. That's too bad for a variety of reasons but it seems inevitable.

Lake Mills

Went 56% for Bush/Cheney and 50% for Obama.

And back again

AP's status on the number of outstanding precincts is not quite flawless. Prosser is up 4700 but there are enough out there to make that up - particularly since few to be in obvious Prosser strongholds.

Forth and back

Now a 400 vote lead for Prosser with only five unreported precincts in Dane and 13 in Milwaukee while 68 are yet to report in Waukesha and 19 in Washington. Still a fair number out in Eau Claire and Marathon.

Back and forth

Wow. Prosser now up 500. A 35k margin gone and still a fair number of precincts out in Dane vs. a larger number in Waukesha and Washington. But also a fair number yet to report in Eau Claire and Marathon.

A Barnburner

What did I tell you Fond du Lac is in and Prosser did well but not as well as he might have hoped. The lead is 4k and it a significant turn is going to the 54 out in Dane and Milwaukee vs. the 92 out in Waukesha and Washington.

Where it is

You hate to put up a blog post that becomes immediately dated, but isn't this the thing in the Supreme Court race? Kloppenburg has nontrivial lead (12k votes as I write) and presumably some more votes to gather in that there are still precincts out in Dane and Milwaukee. Her margin in Dane is staggering.

But there are lots of precincts in Waukesha that are out and a goodly number in Washington where Prosser's margin is staggering. And out sits all of Fond du Lac which went handily for Gableman. There are some other places for Kloppenburg to do business but the upside seems better for Prosser. Can he make it up?

Electioneering at the Polling Places.

The GAB has apparently decided that it is OK for people to circulate recall petitions at polling places inside the 100 foot buffer zone - subject to certain restrictions. That's a plausible interpretation of the law but not the only one.

Sec. 12.03(2)(b)1 provides that "[n]o person may engage in electioneering during polling hours on any public property on election day within 100 feet of an entrance to a building containing a polling place." Electioneering is defined as "any activity which is intended to influence voting at an election." Sec. 12.03(4)

In the context of this election, I am not sure that soliciting recall petitions isn't designed to influence voting. I am not sure I'd disagree with the GAB or would go the other way. I am generally loathe to support interpretations of the law that restrict speech or electoral advocacy.

I wouldn't be surprised if we start to see allegations that petition circulators are crossing the line.

The Caperton Problem

On Charlie Sykes show this morning, we talked about Joanne Kloppenburg having a potential Caperton problem on the budget repair bill. Here's the low down. In Caperton v. A.T. Massey Coal Company, the United States Supreme Court held that a judge who has benefited from extraordinary spending by a party with a case that is pending or quite likely to come before the Court may have a constitutional obligation to recuse himself. This is particularly so when that spending and support has has a disproportionate effect on the election. In Caperton, Massey had a huge case that was almost certain to come before the West Virgina Supreme Court. Its CEO spent millions of dollars on behalf of a successful challenger and that challenger refused to step aside in Massey's case. He voted in Massey's favor and the US Supreme Court set aside the decision.

I have done some scholarly work on Caperton in which I argue that it should be read narrowly. But even a fairly narrow reading suggests a potential Caperton problem here. It is in fact a more extreme case than Caperton. Joanne Kloppenburg was almost certain to lose the election prior to the furor over the budget repair bill. In the February primary, Jusice Prosser waxed the field.

Since then public employee unions have, in President Obama's term, got all "wee-wee'd up." They have made a concerted effort to turn the race into a referendum on the budget repair bill and are pouring a lot of money into the race. The bill, while it will not devastate public employees, may well constitute an existential threat to the unions. In states where employees have been given a choice about whether to pay dues, as many as 95% have declined to do so.

Challenges to that bill are pending. In Caperton's terms, there is a potential for a "debt of gratitude" on the part of Kloppenburg to the unions such that there will be the potential for or appearance of a threat to her impartiality. She has, in fact, fanned that flame by winking at the "Prosser is Walker" theme and talking about listening to the voices of the protesters. But Caperton doesn't require that she be actually biased, only that circumstances are such that a jusge might be unable to hold the balance "narrow, straight and true." It is an objective test.

In fact, we may have a stronger case for recusal here than in Caperton. It was far from clear that the money spent in Caperton had an extraordinary impact on the election. Others spent large sums as well and there were all sorts of other reasons that the incumbent lost. If Ms. Kloppenburg wins today, it will be entirely due to the budget repair bill and ensuing efforts to turn the race into a referendum on that bill. Unlike Caperton (in which Massey's case was not an electoral issue), the election will have been about a matter likely to come before the Court.

How this will play out is unclear. The conservative wing on the Wisconsin Supreme Court has - wrongly in my view - said that the court has no power to enforce Caperton and Kloppenburg has - prematurely in my view because she cannot yet know all the pertinent facts - said that she will not recuse. In fact, saying that you won't recuse might be viewed as promising to rule in a certain way on a guestion likely to come before the court, i.e., the request to recuse. (Remember the fact that she believes she can be impartial is not dispositive under Caperton.) If she declines to recuse, the conservative wing of the Court would presumably still take the position that she cannot be compelled to do so.

But if she wins and does not step aside, any decision invalidating the budget repair bill may become subject to United States Supreme Court review. Again the breakdown of votes is confounding, since the conservatives on the Court dissented in Caperton.

But here's a potential scenario. I honestly don't know how David Prosser will vote on challenges to the budget repair bill. I wouldn't expect him to support the open meetings challenge but then I don't expect Pat Crooks to do so either. It's weak.

But I could be wrong. And maybe there are other challenges that will have more merit. All are likely to be based on structural limits on government action and a conservative jurist might be inclined to construe those limits broadly. If the unions defeat Prosser, might they be losing a fourth vote to invalidate the bill and electing someone who will be unable to sit?

More Reflections on Ozanne

Judge Sumi has once again issued an order without explaining her authority to act. I understand that she probably buys the argument that passage of the open meetings law somehow effected, sub silentio, an exception to the general rule against enjoining publication of the law. The idea is the legislature has made itself subject to the law and, therefore, a law passed in violation of the law might be void.

But that begs the question. In all cases in which an injunction against publication is sought, there was an argument that the legislature had failed to abide by a legal command applicable to it. In Goodland, it was the requirement that a 2/3 vote be obtained to override the Governor's veto. While the open meetings law gives courts the authority to declare actions taken in violation of the law to be void, that doesn't mean that they can enjoin the publication of enacted laws. (Incidentally for those who keep saying that Goodland is too old to be the law, it's rationale was reiterated and endorsed in a 1977 decision of the Court, albeit in a different context.)

The error matters here for at least two reasons. First, if the law has been published, it may be effective. Presumably collective bargaining agreements passed in violation of its terms will be void. But it it has not been published and not yet gone into effect, we can expect to see an argument that agreements passed in the period between its enactment and its delayed publication are effective. If those arguments succeed, the court will have - however unintentionally - created an extended window for evasion of the law. (If this doesn't work, incidentally, it may be because the LRB published the law.)

Second, Judge Sumi is now uncertain how to proceed. I can understand why. What does she do with the immune legislative defendants? When, indeed, will their immunity end? This is apparently one of the reason that, having acted with what may turn out to have been undue haste, the court has now continued a temporary restraining order for at least seven weeks for additional briefing.

For those of you are wondering, we normally don't have problems with legislative immunity in cases seeking the invalidation of a law. The reason is we don't sue the legislators. We sue whoever is charged with implementing the law. That didn't happen here - at least in part - because of the desire to enjoin publication. Error begets error.

But beyond all of this, it really helps when a court explains itself. That generally involves identifying an issue, acknowledging the arguments of counsel and explaining why they do or do not apply. That helps the appellate courts, informs the public and may even lead to better decisionmaking. I am not a judge but I am a referee in discipline cases. More than once, I have modified my recommendation because it turns out that, to use the judicial lexicon, it "wouldn't write."

By way of counterexample, I disagree with Judge Conley's decision in Wisconsin Right to Life v. Brennan and think that the United States Supreme Court will go the other way. But he explained - in some detail - why he ruled the way that he did.

In fairness to Judge Sumi, things have moved fast and state court judges don't have the kind of help that federal judges do. It is also possible for an opinion to follow a ruling. I hope she considers that. She may well find that it just doesn't write.

Yesterday in Ozanne v. Fitzgerald

So what about Judge Sumi's order yesterday? In today's Journal Sentinel, I am quoted as saying that I was not surprised by the ruling but was critical of it. Both are true.

But the fact that I am surprised is not an ad hominem attack on Judge Sumi, as Tom Foley suggests (before jumping into an ad hominem attack*). In fact, I made clear to Bill Glauber that I was not attacking Judge Sumi's motivation but just criticizing her legal reasoning. He was careful not to imply any such attack. My lack of surprise stems from the fact that, after 30 years of practicing law, I have noticed that judges don't often retreat after taking a position.

But the fact remains that she has yet to address and distinguish Goodland v. Zimmerman. I understand the argument that the Open Meetings law has created, sub silentio, an exception to Goodland. I don't buy it. To say that the legislature is subject to the open meetings law doesn't mean that the normal rule against enjoining publication is inapplicable. Goodland itself involved a claim that the legislature had not complied with a procedural requirement that was binding upon it, i.e., the requirement of a 2/3 vote to override a Governor's veto. It is an old case but, then again, so are a lot of foundational cases. I am unaware of anyone else trying to do what happened here in the 68 years since Goodland.

Mr. Foley assures us - trust him - that the court has properly considered and concluded that apparently controlling Supreme Court precedent is "insignificant." Maybe so, but one would have expected her to tell the public - in the decision explaining her conclusion - why that is the case.

As far as her latest order, it adds little to her last one. She obviously thinks that the LRB was subject to her initial order - presumably because they are, to use the legal term, a "privy" of the Secretary of State. A "privy" is normally someone who acts at the direction of - or in concert with - a party before the court. But the LRB does not act at the direction of the Secretary of State. It's publication duties appear to be independent of those imposed on the Secretary, although they do operate in parallel.

Be that as it may, she has continued to direct her order only to the Secretary of State enjoining him from publication. That's what she did the first time.

What she has not done is enjoin implementation of the law - although she apparently said from the bench that she was doing just that. While she has enjoined the Secretary of State from any further application of Act 10, he has nothing to do with implementing the Act. She has declined to rule on whether the Act is "in effect" - apparently because she wants to take further testimony on that issue.

I am not sure why testimony is necessary on that (it would seem to be a pure question of law with respect to which no factfinding is required or appropriate), but even if she ultimately finds that it is not in effect, she does not have the right parties before it to enjoin implementation. I am doubtful that the LRB is "in privy" with the Secretary of State, but I am sure that the Secretary of Administration (who is appointed by a different constitutional officer) is not.



* Tom says I was a "Republican-for-hire" attorney for Sen. Fitzgerald. I have never met Sen. Fitzgerald and I doubt that he even knows who I am. I was one of the lawyers of record in an Oconto County case in which Sen. Fitzgerald was uninvolved. I did consult with a Madison lawyer regarding the notion of holding the absconding Democratic Senators in contempt and, in that sense, would regard myself as having an attorney-client relationship with the Senate Republicans on that matter. You know about it because I disclosed it here. But I was not paid for any of that work. And, go read Sartre, Tom. He did believe - at least at some points in his often incomprehensible oeuvre - that the proper ends justified the means. But thanks for reading.

More on the Supreme Court Race

My piece on the race is up on Bench Memos at NRO.

Abuse Victims Shouldn't Be Exploited

Is the GWC ad about David Prosser the worst judicial campaign ad ever? Is it worse than the Gableman campaign's ad about Rueben Mitchell?

Well, it seems to raise many of the same issues. The ad may be literally true (Prosser did not prosecute) but it implies that he failed to do so because he wanted to help the Catholic Church cover up the offending priest's activities.

This, it turns out, is not true. One of the victims has now come forward and told us that the matter was not prosecuted because of concern for the victims. He appears to believe that this was the right decision based on the information available to Prosser at the time. The other victim (his brother) apparently agrees. The truth or falsity of an ad's implicit message was an issue with the Mitchell ad as well.

The ad also arguably misstates the role of a prosecutor which is not to charge every case that is brought to him. He or she should consider the emotional toll on the victim, the nature of the available evidence and the probability of future harm. That Prosser made the right - or at least a reasonable - call - at the time based on the information available to him - is reflected in the victim's statement of support. He has said that the ad is "offensive" and "inaccurate" and takes what happened "out of context." He has objected to being used as a "political tool."

Of course, the ad was prepared by the always nasty GWC and not the Kloppenburg campaign. Why it went forward - whether out of incompetence or cynicism - is a topic for another post. She can't coordinate with them and they don't have to pull the ad simply because she asks them to pull it.

But she still should have called upon them to pull it. To say, as she did, that they have the right to free speech is a non sequitur. Of course, they do. But that doesn't mean that the ad ought to have been run. That doesn't require the rest of us to be nonjudgmental about it.

For those of you who recall that there were some nasty ads exploiting awful cases in 2008, so do I. I recall, for example, criticizing an ad (run against Louis Butler) that showed a crime scene photo of a murdered young women even though (as far as I know) her family never objected.

Even if Ms. Kloppenburg did not want to ask the GWC to pull the ad, she might have condemned it as I and other conservatives condemned the Mitchell ad. We all get pushed out of our comfort zone in hard fought political campaigns. But to remain silent as an abuse victim is exploited and objects to that exploitation is disappointing.

A Primer on Publication of the Collective Bargaining Law

I have made clear my view that the attempt to enjoin publication of the collective bargaining law and Judge Sumi's TRO enjoining publication was wholly without merit. Challenge the law if you wish but it seems clear that you must wait until after it's published. The Supreme Court's decision in Goodland v. Zimmerman, 243 Wis. 459, 10 N.W.2d 180 (1943) makes this clear.

In an odd twist, the law was nevertheless published today and will become effective tomorrow. This isn't defiance of the judge's order by the Republicans or Scott Walker. They didn't do it. It's not defiance of the law at all. It seems to have been mandated by the law. Let's work through it.

It used to be that the Secretary of State had the responsibility for publication of laws. (Thus the defendant in Goodland was the Secretary of State.) This is no longer the case. Sec. 14.38(10) provides that the Secretary shall "[n]o later than the next working day following the deposit of an act in his or her office, provide written notice to the legislative reference bureau of the act number and date of enactment, and the designated date of publication of the act under s. 35.095." Secretary of State LaFollette did that, specifying that the law would be published today - March 25, 2011. This was latest day that he could have done so under sec. 35.095(3)(b) which provides that "[t]he secretary of state shall designate a date of publication for each act and every portion of an act which is enacted by the legislature over the governor's partial veto. The date of publication may not be more than 10 working days after the date of enactment."

But publication itself is not the responsibility of the Secretary of State. It is the responsibility of the Legislative Reference Bureau. It is obligated to "publish every act and every portion of an act which is enacted by the legislature over the governor's partial veto within 10 working days after its date of enactment." This would presumably be on the date designated by the Secretary of State, although it is not clear that this obligation is contingent upon the designation of a date by the Secretary.

The order in Ozanne was directed to the Secretary of State. Judge Sumi held that "[t]he next step in implementation of the law would be publication of that law by the Secretary of State." That assumption was incorrect. She then ordered that "[h]e is restrained and enjoined from such publication until further order of this court."
Secretary of LaFollette has complied with that order.

But, the thing is, he had no responsibility for the law's publication. The Legislative Reference Bureau was obligated to publish the law. It's duty is mandatory and not something that the Governor- or the Secretary of State - can either mandate or stop. The LRB did this because the LRB had to do it. If District Attorney Ozanne wanted to stop it, he should have sued the LRB. He didn't.

Now I understand that people will say that the LRB should have figured out what Judge Sumi wanted and did what the DA did not ask for and she did not order and that it was not obligated to do. The law doesn't work that way. It doesn't allow state agencies to do whatever they think is right or whatever they think a judge in a case to which they were not a party would have ordered them to do had they been a party. The LRB had a clear legal obligation that was not altered by any court order and it followed it.

So what is the effect of publication? There are some suggestions that the chief of the LRB thinks that some further action by the Secretary of State is required to make the new law effective. Maybe, but probably not. Let's break it down.

The Secretary of State does have publication responsibilities. He is required to "[p]ublish in the official state newspaper within 10 days after the date of publication of an act a notice certifying the number of each act, the number of the bill from which it originated, the date of publication and the relating clause." I would think that Judge Sumi's order prevents him from doing that.

But is that necessary for the law to become effective? In a word, no. Sec. 991.11 provides that "[e]very act and every portion of an act enacted by the legislature over the governor's partial veto which does not expressly prescribe the time when it takes effect shall take effect on the day after its date of publication as designated under s. 35.095 (3) (b)." Indeed, the requirement to publish in the state newspaper is expressly required to happen ten days after the date of the publication. Any argument that "publication" means publishing in the state newspaper would seem, as far as I can tell, to be frivolous.

But apparently the LRB wants to say (according to an e-mail from a staff attorney) that sec. 991.11's reference to sec. 35.095(3)(b) is meant to refer to the "publication activities of the Secretary of the State, rather than the publication activities of the LRB." The point is, I suppose, that 35.095(3)(b) refers to the publication date specified by the Secretary that is not to be more than ten days after enactment of the act. The e-mail states that the "statutory obligation that relates to the effective date of Act 10 has not yet been satisfied by the Secretary of State."

One's initial reaction is that it has been satisfied. The Secretary is required to designate a publication date and he did so. The "publication activity" then becomes the responsibility of the LRB. But Secretary LaFollette did attempt to rescind his designation of the publication date. The issue now becomes whether that means anything.

The statute does not say that he has the power to rescind the publication date. Indeed the statutory framework does not seem to contemplate that there can be a publication date that is distinct from the date that the LRB publishes. There is a single date that is to be specified by the Secretary but that, in any event, must be accomplished by the LRB within ten days of enactment. The best reading of 35.095(3)(a)and (b) is that there is a single date of publication because there is no act of publication that is required of the Secretary to make the law become effective. The LRB seems to think that the Secretary has some further publication obligation that is related to the Act's effectiveness. But there does not seem to be anything that can fairly be called that. All he can do is pick another day for something that the LRB had to do by today.

The Secretary is supposed to inform the LRB of its obligation. The LRB is supposed to carry it out. If you want to stop publication (which, under Goodland, a court may not do), you had better sue the LRB.

In any event, Secretary LaFollette was not ordered to rescind his designation of a publication date by Judge Sumi. Her order only enjoins him from doing something - publishing - that he had no power to do. Perhaps recission of the date is to be implied from her order but one would have expected both the DA and the judge to be more precise about that.

At the end of the day, it's possible to argue that the law will not go into effect tomorrow but the greater likelihood is that it will.

Two final points. I am sure some folks will argue that the law has become effective only because of the errors of the Dane County DA and Judge Sumi. That's not right. The statutory framework here - one that confers only ministerial duties on the Secretary of State to choose a publication date and the LRB to publish - is consistent with the notion that publication is part of the legislative process. District Attorney Ozanne and Judge Sumi never had the authority to stop publication and their failure to read the law has only resulted in their own errors being negated. There is poetic justice in that.

And the larger point. The case does not go away. If District Attorney Ozanne wants to stop implementation of the law, the ball is in his court. He probably has some work to do. It's not clear that he has standing or the proper defendants. But that's a whole other set of issues.

UPDATE: My colleague Ed Fallone is quoted as saying that publication was unconstitutional. You never know how accurate quotes are but his point seems to be "you cannot take powers away from the Secretary of State, the person whose job it is to publish a law."

I'd like to hear Ed's arguments, but, if that's the point, I think it's wrong. The Wisconsin Constitution does not give the Secretary of State the power or duty to publish laws. To the contrary, it is the legislature that is empowered by Art. IV, sec. 17 "to provide by law for the speedy publication of all laws." The Secretary of State's only constitutional duties are to "keep a fair record of the official acts of the legislature and executive department and ... when required [to]lay the same before same and all matters relative thereto before either branch of the legislature." Art. VI, sec. 2. He is also to "perform such other duties as shall be assigned him by law." Id. In other words, he keeps records and does whatever else the legislature enacts into law for him to do.

He used to have responsibility to publish laws. As noted above, that was the case in 1943 when the Supreme Court decided Goodland v. Zimmerman. Four years earlier, in State ex rel. Martin v. Zimmerman, 233 Wis. 16, 288 N.W. 454
(1939), the Court, in ordering the Secretary to publish a law that he thought was unconstitutional, treated the publication obligation as a ministerial duty commanded by the legislature. ("When an act so approved reaches the office of the Secretary of State, the Legislature has commanded that he immediately publish it.")

Now, if the Secretary has only duties (other than keeping a record of official acts) that are prescribed by law, then those duties - being the creation of the statutes - can be changed. In this case, the legislature took the duty of "publication" (at least that publication which renders a law effective under 991.11) and gave it to the legislative reference bureau. This was a perfectly appropriate exercise of its constitutional authority under Art. IV., sec. 17.

A Simple Step in Ozanne v. Fitgerald

There is a fairly simple and clearly correct response for the Wisconsin Supreme Court to the Court of Appeals' certification in Ozanne v. Fitzgerald. The Court should unanimously vacate the TRO and remand the case with instructions to dismiss for lack of jurisdiction and without prejudice to the District Attorney's open meetings challenge at such time that the law is published.

As I have said before, there is clear precedent establishing that the challenge to the validity of a law may not be made until it is published. The DA's argument that the open meetings law applies to the legislature does not change that since the case that established the rule also involved a legal command that applied to the legislature, i.e., the requirement that a 2/3 vote be obtained to override the Governor's veto. Particularily where the case does not seek to remedy an ongoing or imminent open meetings violation but to invalidate a law that has already been passed, there seems to be no reason that the normal rule should not apply.

Doing this would have the salutory effect of not forcing the justices to consider the issue in the hothouse of an election. I understand why Kloppenburg supporters might not want this but it seems to be both prudent and legally correct.

The Iron Ring of Milwaukee

As I have mentioned in the past, I grew up in a union household. In fact, it was a government employee union household. My stepdad is a retired firefighter and I still think of home when I see the symbol of the International Association of Firefighters. It was on the window of the family car.

Dad stressed a few things. We should root for the Packers, support Democrats and hate residency requirements. Two out of three stuck (and Dad lost his affinity for Democrats so I can hardly be read out of the will). Ironically, we were made to live in Greenfield, not Milwaukee.

The family struggle with residency continues. My daughter-in-law is an MPS teacher and so she and my son had to buy a home in Milwaukee. My sister is an administrator and has had to do the same thing. It's hard for me to approach the issue without a lot of baggage.

The argument that one must live in a city to understand the problem of its residents is specious. Few of the police and teachers here in Mequon live in the city and they seem to do a fine job. Within Milwaukee, city and MPS employees tend to live in public employee "ghettos" which most decidedly do not share the problems of the city at large. These neighborhoods tend to be low crime (a cop is to be found in every other house)and the children either attend private schools or are placed by their teacher parent in one of the relatively few MPS schools that do not share the problems that exist system wide, such as German Immersion (wo mein Enkelsohn Aiden ist im erste Grad.)

But the argument that, without residency, the city would lose a lot of middle class residents is not as easy to dismiss. It might. Part of the problem is MPS although - at least before high school - teachers, at least, seem able to get their kids into one of a few good schools. The other is taxes. Both of these issues have contributed to a significant exodus of the middle class already. Residency is an effort to stem the tide.

But it's not a very good one. You cannot maintain a thriving middle class by taxing the middle class to pay middle class wages. There must be some source of revenue other than what the government extracts from its citizens and pays back to them. Leah Vukmir is right. The problem with collapsing cities like Detroit is not that the middle class has left. It's what made them leave.

Shark on Dead Tree

My column in the Journal Sentinel on the flight of the Senators is here. I filed the piece before Sen. Tim Cullen's op-ed in Sunday's paper. He leaves me unmoved. Sen. Cullen suggests that he had some constitutional right to "slow down" consideration of the budget repair bill but, if he does, it isn't to be found in the constitution's quorum requirements. As he himself notes, those requirements seem to have been designed to ensure that a rump of the legislature would not act before all of the members could arrive. It was intended, in other words, to ensure that all - or at least a sufficient number - of members could participate. That it was not intended to permit a minority to paralyze the legislature by staying away is conclusively established by the grant to the legislature of the power to compel members to attend.

Nor were the Democrats seeking merely to "slow down" consideration of the bill. That would have been accomplished by staying away for a few days or a week. It would not involve threatening to stay away until the bill had been changed to the Democrat's liking. That's not "slowing down," it's obstruction.

It doesn't surprise me that Senator Cullen can't defend what was done. My guess is that, while he certainly opposes the budget repair bill, he never wanted to skip town and went along only to avoid becoming a pariah in his own caucus.

Getting the Prosser Story Straight

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.

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.

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:

(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.

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.

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.

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.

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.

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:

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:

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.

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.

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.

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.

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.

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.

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.

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.