Tom Barrett’s proposal for “nonpartisan” redistricting may reduce the degree of “incumbent protection” that takes place in the redrawing of legislative districts, but I think it is more interesting for what it does not do.
There is a movement in the country to have redistricting by commission according to what are generally though to be neutral redistricting principles, i.e., the creation of compact and contiguous districts that, to the extent possible, respect municipal and county boundaries and (perhaps) geographical barriers that seperate one community from another. See. e.g., California’s Voter First Act. These principles restrict discretion in redistricting and, or so the theory goes, minimize the opportunity for political maneuvering. This doesn’t eliminate contention but the establishment of physical requirements reduces the opportunity for gerrymandering to protect incumbents or to maximize the opportunities for the party in power.
That’s not what Barrett wants to do and that’s not surprising. As a general matter, Democratic voters are more concentrated that Republican voters. Contiguous and compact districts will tend to create a smaller number of heavily Democratic districts.
So Barret wants to gerrymander to “maximize” competitive districts. Depending on your theory of representation, this may or may not be a good thing. If you see a legislator as representing people who are in what is, in some sense, an organic community, then membership in that community would seem to be a fairly important principle of districting. If you view legislators as simply a vote in a national or state wide community, then trying to reflect the political balance of that community becomes more important – although that is not the objective of the Barrett plan either.
However, you do that, once you depart from physical criteria and permit gerrymandering for “competition,” the political game is back with a vengeance. There are ikely to be many ways in which competition can be claimed to be “maximized” and these ways are probably unlikely to be politically neutral.
But, more than that, Barrett wants to make sure that districts are drawn with an eye toward creating majority minority districts and this normally results in Democrat majority districts. It would, essentially, operate as an exception to the mandate to create competitive districts by permitting the packing of Democratic voters. This may or may not be required by the Voting Act and may or not operate to the detriment to the Republicans (indeed, sometimes Republicans support it because it draws Democratic voters out of surrounding districts).
My point is that it, along with requirement of “competition,” contributes to, rather than constrains, legislative discretion in the drawing of districts and that opens the door for the political battle that has traditionally been redistricting.
Another curious feature of the Barrett plan is placing the final decision – should the politicians not agree – with the Government Accountability Board. Under current law, a legislative impasse is resolved by the courts. This is not a theoretical matter. State legislative districts in Wisconsin have not been redrawn without going to court since the 1930s. Why the GAB – which is assembled for a different purpose and consists of members appointed by the political branches – is prefereable is not obvious. Why it can be expected to have the resources or expertise to
If past is prologue, the GAB will be redistricting and, under existing doctrine, will be largely immune from judicial review.
Cross posted at Marquette University Law School Faculty Blog
Thursday, July 15, 2010
How Toxic is Thomas?
Pat McIlheran has an interesting find in today's Journal Sentinel, commenting on Judge Randa's underreported decision in Gibson v. American Cyanamid. Judge Randa held that application of the Wisconsin Supreme Court's Thomas decision (which applied something called risk contribution theory to hold lead paint pigment manufacturers collectively responsible for all harm from that product) would violate the federal due process rights of a defendant who had not itself manufactured lead paint pigment, but had assumed the liabilities of a manufacturer who had.
I spoke briefly with Pat yesterday on the potential fallout from the case and he quoted part of what I said. (The tyranny of 800 words is best understood by those who must submit to it.)
Here's a more expanded version.
I don't know how broad Judge Randa's holding is. The defendant in the case before him did not itself manufacture lead paint pigment but purchased a company who had and assumed its liabilities. It is unclear whether Judge Randa would have reached the same result for a company that had itself participated in the market. The sense I get from his opinion is that he would have, but, for now, we don't know that.
A decision limited to successors in liability would have limited effect, but, without getting into the merits of Judge Randa's decision (I'll do that later), let's assume that it means that Thomas id flat out unconstitutional. The federal constitution trumps the common law determinations of even the highest state courts.
But here's where it gets sticky. State courts are not required to follow the decisions of lower federal courts on questions of federal law. Because the Thomas Court did not consider the precise question reached by Judge Randa (they said it was not "ripe" because the defendants had not yet been found liable for any damages), it is still an open question. Lower state courts might agree with Judge Randa. They might not. If Judge Randa's decision is affirmed by the Seventh Circuit (also a "lower" federal court) all federal judges in the Wisconsin will follow Judge Randa.
Thus, as Pat writes, we may have an extended period of time in which the Thomas is applied in state court but not in federal court. That period of uncertainty could only be definitively resolved by a decision of the United States Supreme Court, although a decision by the Wisconsin Supreme Court - if not reviewed by SCOTUS - would resolve it as a practical matter if it found that Thomas does violate the federal constitution.
And, here we have another twist, the Wisconsin Supreme Court is not the same court that decided Thomas. This may eventually present an opportunity for the Court to abandon Thomas without directly overruling it.
Cross posted at Marquette University Law School Faculty Blog
I spoke briefly with Pat yesterday on the potential fallout from the case and he quoted part of what I said. (The tyranny of 800 words is best understood by those who must submit to it.)
Here's a more expanded version.
I don't know how broad Judge Randa's holding is. The defendant in the case before him did not itself manufacture lead paint pigment but purchased a company who had and assumed its liabilities. It is unclear whether Judge Randa would have reached the same result for a company that had itself participated in the market. The sense I get from his opinion is that he would have, but, for now, we don't know that.
A decision limited to successors in liability would have limited effect, but, without getting into the merits of Judge Randa's decision (I'll do that later), let's assume that it means that Thomas id flat out unconstitutional. The federal constitution trumps the common law determinations of even the highest state courts.
But here's where it gets sticky. State courts are not required to follow the decisions of lower federal courts on questions of federal law. Because the Thomas Court did not consider the precise question reached by Judge Randa (they said it was not "ripe" because the defendants had not yet been found liable for any damages), it is still an open question. Lower state courts might agree with Judge Randa. They might not. If Judge Randa's decision is affirmed by the Seventh Circuit (also a "lower" federal court) all federal judges in the Wisconsin will follow Judge Randa.
Thus, as Pat writes, we may have an extended period of time in which the Thomas is applied in state court but not in federal court. That period of uncertainty could only be definitively resolved by a decision of the United States Supreme Court, although a decision by the Wisconsin Supreme Court - if not reviewed by SCOTUS - would resolve it as a practical matter if it found that Thomas does violate the federal constitution.
And, here we have another twist, the Wisconsin Supreme Court is not the same court that decided Thomas. This may eventually present an opportunity for the Court to abandon Thomas without directly overruling it.
Cross posted at Marquette University Law School Faculty Blog
Monday, July 12, 2010
Illegal Immigrants Are Deported Because They Are Illegal Immigrants
Language surrounding the question of immigration becomes increasingly odd. Today's Journal Sentinel runs a head stating that "More illegal immigrants being deported for lesser offenses, advocate says."
Well, the advocate did say that (although she did not use the term "illegal" immigrants), but she is objectively wrong. The persons in question are not being deported "for" the offenses that have brought them to the attention of law enforcement. They are being deported because they aren't supposed to be here.
The advocate, Christine Neuman-Ortiz, wants to "investigate." Investigate what?
Well, the advocate did say that (although she did not use the term "illegal" immigrants), but she is objectively wrong. The persons in question are not being deported "for" the offenses that have brought them to the attention of law enforcement. They are being deported because they aren't supposed to be here.
The advocate, Christine Neuman-Ortiz, wants to "investigate." Investigate what?
Thursday, July 08, 2010
More Contention on the Wisconsin Supreme Court
Today, the Court finally issued opinions on the recusal rules and the sharp divisions between the majority and minority continue. I wish that would get better. I have an article on judicial recusal coming out in the Wake Forest Law Review, so it's a subject that I have been thinking about. I have the following quick observations on the Court's decision.
First, I think that the rules on the impact of contributions and expenditures are clearly correct - as far as they go. To say that a legal contribution or expenditure cannot be the sole cause of a duty to recuse seems unexceptional to me and is perfectly consistent with the Supreme Court's decision in Caperton (in which Justice Kennedy repeatedly referred to the unusual nature of the facts involved in that case.)
Of course, this is not to say that a legal contribution or expenditure cannot be a factor - perhaps even a predominant factor - leading to a duty to recuse. Caperton, for example, involved a perfectly legal (albeit it very large) independent expenditure coupled with a very significant and imminent case.
To be sure, there is much more to say about what may and may not lead to a duty to recuse - not only with respect to contributions and expenditures, but also with respect to other matters such as candidate speech and support. These are some of the things that I try to address in the Wake Forest piece, although whether and to what extent these matters should and can be addressed by rule (and who should make the rule)constitues a different set of questions.
Second, I think Justice Bradley misses the connection between aggressive recusal rules and burdens on political participation. More than Justice Roggensack, I would address, not only the right to vote, but the rights of expression and association regarding judicial elections and related issues. If the price of speech is that your candidate - if successful - can't act, then your speech has been burdened. While this may be tolerable in the case of individual litigants like the A.T. Massey Coal Co, it becomes more problematic if recusal is based upon support from trade associations and unions.
In fact, some academics have urged tough recusal standards as a way to suppress what they believe to be improper (although constitutionally protected)campaign speech in judicial elections and as a way to return judicial elections to quiet contests of low salience.
Third, the rule regarding solicitation of funds from litigants or potential litigants presents a slightly different set of concerns. While it doesn't seem that it alone should create a duty to recuse (such a rule might very well bar, for example, solicitations sent to a union's membership list or the arrangement of fundraisers in which invitations are sent based upon organizational affiliation or in which potentially interested parties attend and are then asked to contribute), I think that, as the comments suggest, there is a potential such solicitation will to the "something else" that may create a recusal issue.
Fourth, I think the emphasis on who wrote the rule is more about atmospherics than substance. If the rule is a good rule, it doesn't matter that WMC or the Realtors proposed it. It it is a bad rule, it'd be just as bad if written, in the first instance, by members of the Court.
First, I think that the rules on the impact of contributions and expenditures are clearly correct - as far as they go. To say that a legal contribution or expenditure cannot be the sole cause of a duty to recuse seems unexceptional to me and is perfectly consistent with the Supreme Court's decision in Caperton (in which Justice Kennedy repeatedly referred to the unusual nature of the facts involved in that case.)
Of course, this is not to say that a legal contribution or expenditure cannot be a factor - perhaps even a predominant factor - leading to a duty to recuse. Caperton, for example, involved a perfectly legal (albeit it very large) independent expenditure coupled with a very significant and imminent case.
To be sure, there is much more to say about what may and may not lead to a duty to recuse - not only with respect to contributions and expenditures, but also with respect to other matters such as candidate speech and support. These are some of the things that I try to address in the Wake Forest piece, although whether and to what extent these matters should and can be addressed by rule (and who should make the rule)constitues a different set of questions.
Second, I think Justice Bradley misses the connection between aggressive recusal rules and burdens on political participation. More than Justice Roggensack, I would address, not only the right to vote, but the rights of expression and association regarding judicial elections and related issues. If the price of speech is that your candidate - if successful - can't act, then your speech has been burdened. While this may be tolerable in the case of individual litigants like the A.T. Massey Coal Co, it becomes more problematic if recusal is based upon support from trade associations and unions.
In fact, some academics have urged tough recusal standards as a way to suppress what they believe to be improper (although constitutionally protected)campaign speech in judicial elections and as a way to return judicial elections to quiet contests of low salience.
Third, the rule regarding solicitation of funds from litigants or potential litigants presents a slightly different set of concerns. While it doesn't seem that it alone should create a duty to recuse (such a rule might very well bar, for example, solicitations sent to a union's membership list or the arrangement of fundraisers in which invitations are sent based upon organizational affiliation or in which potentially interested parties attend and are then asked to contribute), I think that, as the comments suggest, there is a potential such solicitation will to the "something else" that may create a recusal issue.
Fourth, I think the emphasis on who wrote the rule is more about atmospherics than substance. If the rule is a good rule, it doesn't matter that WMC or the Realtors proposed it. It it is a bad rule, it'd be just as bad if written, in the first instance, by members of the Court.
Wednesday, July 07, 2010
One way or another, the Gableman Case Is Over
The more I look at the writings in Judicial Commission v. Gableman, the more I become convinced that the case should be over. To suggest otherwise seems to require the Judicial Commission to do something that it cannot do, that makes no sense and that cannot alter the deadlock on the Court. Here's why.
The Abrahamson group (I refer to the two groups by the name of their senior member) purports to dismiss the three judge panel and remand the case to the Judicial Commission. As a preliminary matter, it can do neither because a majority of the participating justices have not so ordered. Ties don't count as wins.
The Abrahamson group would get around this problem by treating the recommendation as a motion for summary judgment that has, by virtue of a deadlock, not been granted and that would somehow leave the matter pending below. But that is not quite right. The motion for summary judgment was directed to the three judge panel and resulted - not in a motion - but in a recommendation. That recommendation has not been accepted but that is not equivalent to the denial of a motion for summary judgment.
It might have been akin to denial of such a motion if a majority of the participating justices had remanded the case for further fact finding. But, again, that didn't happen and it is clear from their writings that neither the Abrahamson or Prosser group believes that further factfinding is necessary. More on this in a moment.
The Abrahamson group goes beyond a simple assertion that the motion for summary judgment has been denied. It tells the Judicial Commission to treat the complaint "as if were just being filed." But it cites no authority that would permit the Commission to do so. The reason that the group wants to do this is to take the matter from the three judge panel who, in its view, got it wrong and could not reasonably be expected to do anything differently should the matter be tried. (This is because, as noted below, there appear to be no factual assertions advanced by anyone that would - or, given the reasons they have given for the panel's decision - should alter the outcome.) The Abrahamson group tells the Commission that "it needs" to request a jury (and, oddly, not only a jury but a jury of twelve - something that is not required even if a jury is properly requested).
This seems to contradict the relevant statute which provides that "before the commission files a formal complaint or a petition under s. 757.85(5), the commission may, by a majority of its total membership not disqualified from voting, request a jury hearing." Wis Stat. sec. 757.87(1)(emphasis supplied) The statute goes on to say that "[i]f a jury is not requested, the matter shall be heard by a [panel ...." Id.
In this case, the Commission did not request a jury and, therefore, the matter was submitted to the three judge panel. Absent some breakthrough in quantum physics, there is obviously no way that the Commission can now go back and request a jury before the complaint was filed.
Perhaps an argument can be made to read the statute to permit a jury request at this stage in the proceeding. A realist might, after all, point out that the statute means whatever the state's highest court says it means.
And there's the rub. A majority of the participating justices has not said that the Commission may now request a jury trial. In fact, three justices have said that it may not and that alone is enough to render any such trial meaningless. Those three justices believe - and will hold - that a jury trial was unlawful and presumably will not accept any recommendation based upon such a trial.
Putting that aside, a jury trial in this case seems almost certain to accomplish nothing. No participant in the process to date - not the Judicial Commission, not Justice Gableman, not the Abrahamson group and not the Prosser group - has thought that there are any unresolved issues of material fact. What they have disagreed on is how to read the statute, its application to the undisputed facts and, in the case of Judge Fine, its constitutionality as applied to this case. If you take seriously what the Prosser group and Abrahamson group said in their writings, a jury verdict won't change anyone's mind. In fact, it shouldn't change anyone's mind.
Assume that a trial is held and a jury finds that the ad was not false. The Abrahamson group will not - and, given the rationale set forth in its writing - should not change its position. These three Justices believe that the undisputed facts establish a violation. They were willing to, in effect, grant summary judgment to the Commission because they do not believe that there is any issue of material fact as to Justice Gableman's liability. If you believe that there is no issue of material fact on the question of a violation, then the matter ought not to be submitted to a jury and any verdict that finds no violation should be set aside.
Conversely, if a jury finds that the ad was misleading, the Prosser group will not - and given the rationale set forth in its writing - should not change its position. They believe that there are no material issues of fact as to Justice Gableman's innocence. If that is what you believe, then submission of the question to a jury would be error and any verdict finding a violation should be set aside.
This is why our friend Illusory Tenant is wrong in suggesting that there are facts to be tried. The Abrahamson group tries to create an issue of fact by referring to the video portion of Mitchell's ads and three citations that appeared on the screen. These three citations were to the proceedings in Mitchell's case in the circuit court and Court of Appeals. There was no citation to the Supreme Court decision that reversed Mitchell's victory in the Court of Appeals while including citations to the proceedings below. That omission, they say, wasn't included in the stipulation considered by the three judge panel.
There are three problems with that. The first is that it is not at all clear that the video of the ad was not considered by the three judge panel. Second, the import of excluding the Supreme Court citation was addressed by the stipulation of facts before the panel, i.e., then Attorney Butler did not obtain Mr. Mitchell's release. The Supreme Court affirmed his conviction and he served his sentence. It is, at best, cumulative.
But most fundamentally, neither the Prosser or Abrahamson group found this fact to be material, i.e., they were able to resolve the case without any finding on whether the citations made the ad true (as Justice Gableman's counsel attempted to argue) or constituted some type of independent or exacerbating falsehood.
Commenting on Tom Foley's blog, Rob Henak (who brought certain of the motions to recuse Justice Gableman) offers the Abrahamson group some advice. Perhaps the problem is that the Prosser group misunderstands the impact of the First Amendment here wrongly believing that it prohibits discipline of statements that, while literally true, are misleading. Why not petition for cert and ask the Supreme Court to make clear that this is not so?
But,as Rob points out, there is no final order to appeal from and cannot be unless at least one member of the Abrahamson group crosses over and votes to dismiss - presumably because further proceedings would be futile. Beyond that, it doesn't seem like a strong case for cert. Although the constitutional issue is quite interesting, the Prosser group didn't hold the rule unconstitutional but simply construed it to avoid a constitutional problem. Construction of the rule is a question of state law and is not reviewable by the United States Supreme Court.
Even if the Court, through invocation of the rule requiring a clear statement of adequate state grounds to avoid the potential for federal review, takes the case, the most it can do is clarify what it believes the First Amendment requires and remand for reconsideration in light of that clarification. The Prosser group would still remain free to construe the statute as it has and might even invoke the state constitution in support of its construction. Given all that, it's hard to see that the U.S. Supreme Court would take the case.
I appreciate the concerns of those who have a hard time seeing why the case should be over because the Court deadlocked. The answer lies in allocation of the burden of proof. A violation cannot be established without the agreement of a majority of the Court. A majority has not agreed and, based upon the reasons given by the competing groups, never will. I think that, whatever your view of the merits, it's over.
The Abrahamson group (I refer to the two groups by the name of their senior member) purports to dismiss the three judge panel and remand the case to the Judicial Commission. As a preliminary matter, it can do neither because a majority of the participating justices have not so ordered. Ties don't count as wins.
The Abrahamson group would get around this problem by treating the recommendation as a motion for summary judgment that has, by virtue of a deadlock, not been granted and that would somehow leave the matter pending below. But that is not quite right. The motion for summary judgment was directed to the three judge panel and resulted - not in a motion - but in a recommendation. That recommendation has not been accepted but that is not equivalent to the denial of a motion for summary judgment.
It might have been akin to denial of such a motion if a majority of the participating justices had remanded the case for further fact finding. But, again, that didn't happen and it is clear from their writings that neither the Abrahamson or Prosser group believes that further factfinding is necessary. More on this in a moment.
The Abrahamson group goes beyond a simple assertion that the motion for summary judgment has been denied. It tells the Judicial Commission to treat the complaint "as if were just being filed." But it cites no authority that would permit the Commission to do so. The reason that the group wants to do this is to take the matter from the three judge panel who, in its view, got it wrong and could not reasonably be expected to do anything differently should the matter be tried. (This is because, as noted below, there appear to be no factual assertions advanced by anyone that would - or, given the reasons they have given for the panel's decision - should alter the outcome.) The Abrahamson group tells the Commission that "it needs" to request a jury (and, oddly, not only a jury but a jury of twelve - something that is not required even if a jury is properly requested).
This seems to contradict the relevant statute which provides that "before the commission files a formal complaint or a petition under s. 757.85(5), the commission may, by a majority of its total membership not disqualified from voting, request a jury hearing." Wis Stat. sec. 757.87(1)(emphasis supplied) The statute goes on to say that "[i]f a jury is not requested, the matter shall be heard by a [panel ...." Id.
In this case, the Commission did not request a jury and, therefore, the matter was submitted to the three judge panel. Absent some breakthrough in quantum physics, there is obviously no way that the Commission can now go back and request a jury before the complaint was filed.
Perhaps an argument can be made to read the statute to permit a jury request at this stage in the proceeding. A realist might, after all, point out that the statute means whatever the state's highest court says it means.
And there's the rub. A majority of the participating justices has not said that the Commission may now request a jury trial. In fact, three justices have said that it may not and that alone is enough to render any such trial meaningless. Those three justices believe - and will hold - that a jury trial was unlawful and presumably will not accept any recommendation based upon such a trial.
Putting that aside, a jury trial in this case seems almost certain to accomplish nothing. No participant in the process to date - not the Judicial Commission, not Justice Gableman, not the Abrahamson group and not the Prosser group - has thought that there are any unresolved issues of material fact. What they have disagreed on is how to read the statute, its application to the undisputed facts and, in the case of Judge Fine, its constitutionality as applied to this case. If you take seriously what the Prosser group and Abrahamson group said in their writings, a jury verdict won't change anyone's mind. In fact, it shouldn't change anyone's mind.
Assume that a trial is held and a jury finds that the ad was not false. The Abrahamson group will not - and, given the rationale set forth in its writing - should not change its position. These three Justices believe that the undisputed facts establish a violation. They were willing to, in effect, grant summary judgment to the Commission because they do not believe that there is any issue of material fact as to Justice Gableman's liability. If you believe that there is no issue of material fact on the question of a violation, then the matter ought not to be submitted to a jury and any verdict that finds no violation should be set aside.
Conversely, if a jury finds that the ad was misleading, the Prosser group will not - and given the rationale set forth in its writing - should not change its position. They believe that there are no material issues of fact as to Justice Gableman's innocence. If that is what you believe, then submission of the question to a jury would be error and any verdict finding a violation should be set aside.
This is why our friend Illusory Tenant is wrong in suggesting that there are facts to be tried. The Abrahamson group tries to create an issue of fact by referring to the video portion of Mitchell's ads and three citations that appeared on the screen. These three citations were to the proceedings in Mitchell's case in the circuit court and Court of Appeals. There was no citation to the Supreme Court decision that reversed Mitchell's victory in the Court of Appeals while including citations to the proceedings below. That omission, they say, wasn't included in the stipulation considered by the three judge panel.
There are three problems with that. The first is that it is not at all clear that the video of the ad was not considered by the three judge panel. Second, the import of excluding the Supreme Court citation was addressed by the stipulation of facts before the panel, i.e., then Attorney Butler did not obtain Mr. Mitchell's release. The Supreme Court affirmed his conviction and he served his sentence. It is, at best, cumulative.
But most fundamentally, neither the Prosser or Abrahamson group found this fact to be material, i.e., they were able to resolve the case without any finding on whether the citations made the ad true (as Justice Gableman's counsel attempted to argue) or constituted some type of independent or exacerbating falsehood.
Commenting on Tom Foley's blog, Rob Henak (who brought certain of the motions to recuse Justice Gableman) offers the Abrahamson group some advice. Perhaps the problem is that the Prosser group misunderstands the impact of the First Amendment here wrongly believing that it prohibits discipline of statements that, while literally true, are misleading. Why not petition for cert and ask the Supreme Court to make clear that this is not so?
But,as Rob points out, there is no final order to appeal from and cannot be unless at least one member of the Abrahamson group crosses over and votes to dismiss - presumably because further proceedings would be futile. Beyond that, it doesn't seem like a strong case for cert. Although the constitutional issue is quite interesting, the Prosser group didn't hold the rule unconstitutional but simply construed it to avoid a constitutional problem. Construction of the rule is a question of state law and is not reviewable by the United States Supreme Court.
Even if the Court, through invocation of the rule requiring a clear statement of adequate state grounds to avoid the potential for federal review, takes the case, the most it can do is clarify what it believes the First Amendment requires and remand for reconsideration in light of that clarification. The Prosser group would still remain free to construe the statute as it has and might even invoke the state constitution in support of its construction. Given all that, it's hard to see that the U.S. Supreme Court would take the case.
I appreciate the concerns of those who have a hard time seeing why the case should be over because the Court deadlocked. The answer lies in allocation of the burden of proof. A violation cannot be established without the agreement of a majority of the Court. A majority has not agreed and, based upon the reasons given by the competing groups, never will. I think that, whatever your view of the merits, it's over.
Sunday, July 04, 2010
Shark Jr. at Summerfest
Chris Esenberg performed this afternoon at the M & I Classic Rock Stage at Summerfest. He lost to a Whitney Houston sound a like. He was robbed. I am contemplating injunctive relief.
The young man enjoying his lunch at the beginning is Caleb Richard Esenberg who will be 2 on the President's birthday.
The young man enjoying his lunch at the beginning is Caleb Richard Esenberg who will be 2 on the President's birthday.
Thursday, July 01, 2010
Gableman Agonistes
I am on deadline for a column in the Journal Sentinel so I can only make a few preliminary comments on the Wisconsin Supreme Court's actions in Wisconsin Judicial Commission v. Gableman. One group of Justices (Justices Prosser, Roggensack and Ziegler) would have accepted the recommendation of the three judge panel and dismiss the complaint. Another group (Chief Justice Abrahamson and Justices Bradley and Crooks)would have rejected it and found that Justice Gableman violated SCR 60.06(3)(c).
There is much to be said about that (and I will later), but it gets even more interesting. Normally, when the Court deadlocks, the decision below stands. But the opinion of the three judge panel is a recommendation. What happens when it is not accepted.
The Abrahamson group wants to treat review of the recommendation as review of a motion for summary judgement, i.e., a request that the Court decide the matter without trial because there are no material issues of fact. In proceeding before the three judge panel, both the Commission and Justice Gableman agreed that this was the proper way to proceed, i.e., they agreed that there was nothing to be tried because no facts were disputed. The result was a recommendation that the complaint be dismissed.
The Abrahamson group now argues that failure to accept the recommendation is tantamount to a denial of summary judgment. When summary judgment is denied, the matter normally proceeds to trial. Thus, they want to remand the matter for a jury trial.
But there are problems with that. First, the statute governing these proceedings seems to require that a jury trial be requested before the complaint is filed. That did not happen. If there is a trial, it would have to be before the three judge panel.
But, in the view of the three judge panel, there are no issues to be tried. They concluded that the complaint, either as a matter of statutory construction (for two of the judges) or as a matter of constitutional law (for Judge Fine), must be dismissed as a matter of law. Neither the Judicial Commission nor Justice Gableman believes that there any new facts that bear on the matter. If the thing that happens here is that the proceeding below continues before the three judge panel, it would presumably reach the same decision.
In saying that the Wisconsin Judicial Commission "needs" to request a jury trial, the Abrahamson group essentially wants the Commission to start all over again and do what it did not do the first time around.It is telling the Commission, "look, you lost before the three judge panel. Now that you know that, try a jury." But the rules don't seem to permit that.
Beyond that, as a practical matter, replacing the three judge panel with a jury will do not break the impasse. No member of the Court believes that the there are any material facts in dispute, so there would seem to be no reason for a jury verdict to change any one's mind. It is quite clear that three members of the Court (those in the Prosser group) believe that the complaint should be dismissed as a matter of law. A jury verdict in the Commission's favor won't change that. Conversely, there are three members of the Court who believe, as a matter of law, that the Mitchell ad violates SCR 60.06(3)(c). A jury verdict in Justice Gableman's favor won't change that.
The only way that the impasse might be broken is if the composition of the Court changes. Is it appropriate to keep the matter alive in the hope that this might happen? Is there any point in conducting a jury trial that might prolong the controversy but has little or no chance to resolve it?
More to come.
Cross posted at Marquette University Law School Faculty Blog.
There is much to be said about that (and I will later), but it gets even more interesting. Normally, when the Court deadlocks, the decision below stands. But the opinion of the three judge panel is a recommendation. What happens when it is not accepted.
The Abrahamson group wants to treat review of the recommendation as review of a motion for summary judgement, i.e., a request that the Court decide the matter without trial because there are no material issues of fact. In proceeding before the three judge panel, both the Commission and Justice Gableman agreed that this was the proper way to proceed, i.e., they agreed that there was nothing to be tried because no facts were disputed. The result was a recommendation that the complaint be dismissed.
The Abrahamson group now argues that failure to accept the recommendation is tantamount to a denial of summary judgment. When summary judgment is denied, the matter normally proceeds to trial. Thus, they want to remand the matter for a jury trial.
But there are problems with that. First, the statute governing these proceedings seems to require that a jury trial be requested before the complaint is filed. That did not happen. If there is a trial, it would have to be before the three judge panel.
But, in the view of the three judge panel, there are no issues to be tried. They concluded that the complaint, either as a matter of statutory construction (for two of the judges) or as a matter of constitutional law (for Judge Fine), must be dismissed as a matter of law. Neither the Judicial Commission nor Justice Gableman believes that there any new facts that bear on the matter. If the thing that happens here is that the proceeding below continues before the three judge panel, it would presumably reach the same decision.
In saying that the Wisconsin Judicial Commission "needs" to request a jury trial, the Abrahamson group essentially wants the Commission to start all over again and do what it did not do the first time around.It is telling the Commission, "look, you lost before the three judge panel. Now that you know that, try a jury." But the rules don't seem to permit that.
Beyond that, as a practical matter, replacing the three judge panel with a jury will do not break the impasse. No member of the Court believes that the there are any material facts in dispute, so there would seem to be no reason for a jury verdict to change any one's mind. It is quite clear that three members of the Court (those in the Prosser group) believe that the complaint should be dismissed as a matter of law. A jury verdict in the Commission's favor won't change that. Conversely, there are three members of the Court who believe, as a matter of law, that the Mitchell ad violates SCR 60.06(3)(c). A jury verdict in Justice Gableman's favor won't change that.
The only way that the impasse might be broken is if the composition of the Court changes. Is it appropriate to keep the matter alive in the hope that this might happen? Is there any point in conducting a jury trial that might prolong the controversy but has little or no chance to resolve it?
More to come.
Cross posted at Marquette University Law School Faculty Blog.
Wednesday, June 30, 2010
Marriage Amendment Was Validly Enacted
The Wisconsin Supreme Court has held that the amendment to Wisconsin's constitution defining marriage as the union of one man and one woman and prohibiting the recognition of any substantially similar status (Art XIII, sec. 13) was properly enacted. Justice Michael Gableman wrote for a unanimous Court.
The question before the Court was whether the amendment complied with a requirement in the state constitution that voters must be able to vote separately on separate amendments.
Justice Michael Gableman wrote that the legislature may "submit several distinct propositions as one amendment if they relate to the same subject matter and are designed to accomplish one general purpose." The marriage amendment, in the view of the Court, had one general purpose:
By way of full disclosure, I filed an amicus brief supporting the state's position.
Having said that, the decision seems fully consistent with the (admittedly few) prior cases that have addressed the issue and with our constitutional practice. Our state consitution is full of amendments that consist of multiple propositions aimed at accomplishing a general purposes. That a voter may agree with some, but not all, of these propositions has not rendered these amendments improper.
It is important to keep in mind, however, that this was a decision about the procedure by which the amendment was passed. It did not address the consistency or inconsistency of the Amendment with the federal constitution (McConkey lacked standing to bring such a claim) and did not address the proper interpretation of the amendment.
Cross posted at Marquette University Law School Faculty Blog.
The question before the Court was whether the amendment complied with a requirement in the state constitution that voters must be able to vote separately on separate amendments.
Justice Michael Gableman wrote that the legislature may "submit several distinct propositions as one amendment if they relate to the same subject matter and are designed to accomplish one general purpose." The marriage amendment, in the view of the Court, had one general purpose:
"The first sentence preserves the one man-one woman character of marriage by so limiting marriages entered into or recognized in Wisconsin. The second sentence, by its plain terms, ensures that no legislature, court, or any other government entity can get around the first sentence by creating or recognizing "a legal status identical or substantially similar to that of marriage."
By way of full disclosure, I filed an amicus brief supporting the state's position.
Having said that, the decision seems fully consistent with the (admittedly few) prior cases that have addressed the issue and with our constitutional practice. Our state consitution is full of amendments that consist of multiple propositions aimed at accomplishing a general purposes. That a voter may agree with some, but not all, of these propositions has not rendered these amendments improper.
It is important to keep in mind, however, that this was a decision about the procedure by which the amendment was passed. It did not address the consistency or inconsistency of the Amendment with the federal constitution (McConkey lacked standing to bring such a claim) and did not address the proper interpretation of the amendment.
Cross posted at Marquette University Law School Faculty Blog.
Saturday, June 26, 2010
It Takes an Awful Lot of Nerve
I have no idea whether the tragedy at the O'Donnell Park parking structure is attributable to deferred maintenance and neither, as far as I can tell, does anyone else. To reach that conclusion one would have to know why the accident happened and then identify some particular proposed action that would have prevented it or uncovered the flaw that caused it. To simply note that O'Donnell Park has had problems or that there are proposed repairs to the structure that have been deferred tells us exactly nothing about the connection of these matters to the accident. Scott Walker says the County was aware of no needed repairs or existing problem that could have caused such a collapse. While the investigation is just beginning, no one has pointed to a single fact suggesting otherwise. It may turn out to be so, but we don't know yet.
But that doesn't mean that the political ghouls have held their fire. The Recess Supervisor seem to have jumped on it before the next of kin could be informed. The latter seems to acknowledge that there is no proof that deferred maintenance contributed to the tragedy but, the political arts being what they are, it doesn't matter. He's not exploiting anything, just providing us with a political science lesson. Tom Foley allows that while it is "perhaps" tasteless to inject politics into such a tragedy, it is inevitable so ... what the hay. He might as well get in on it.
But the worst person in the world in this regard is former Milwaukee County Supervisor Jim McGuigan - one the Board members who brought us the County pension scandal. Having been recalled by the voters for the gross stupidity that may ultimately cost a government already overly burdened with legacy costs a billion additional dollars, you'd think he'd be wandering around Brown Deer in sack cloth and ashes. But no, he authors a blog with the ironic title of "Watchdog Milwaukee." A bit late on that, Jim, don't you think?
McGuigan's defends himself by blaming others. Who would have thought to question claims that, since the stock market had gone up, it would never go down? Who would have doubted that the way to address the potential for early retirements prompted by the County's already ridiculously generous pension plan would be to make it even more generous?
I am perfectly willing to believe that at least some of those responsible for the pension mess were clueless rather than cunning. The Board may well have gotten poor advice from its human relations manager and actuaries, although the idea that one could promise the world to employees without risk to the taxpayers seems - as we say in the law - frivolous on its face.
Still, we ought to be chastened by our mistakes. One would think that, having blundered into a first class mess, McGuigan might display some humility and generosity in questioning the judgment of others.
Not for a minute. McGuigan accuses Walker of "killing off constituents to satisfy a craven lust for power." He says that "[t]onight there are two parents who have lost a son because Walker has decided that politics is more important than safety." He doesn't know - he couldn't possibly know - whether there is any truth to these allegations.
I suppose that one shouldn't be surprised that someone who voted to financially hollow out County government would not be overly concerned about whether he knows what he's talking about. What we do know is that Thursday night two parents lost their child and Jim McGuigan couldn't wait until after the funeral to politicize their loss.
But that doesn't mean that the political ghouls have held their fire. The Recess Supervisor seem to have jumped on it before the next of kin could be informed. The latter seems to acknowledge that there is no proof that deferred maintenance contributed to the tragedy but, the political arts being what they are, it doesn't matter. He's not exploiting anything, just providing us with a political science lesson. Tom Foley allows that while it is "perhaps" tasteless to inject politics into such a tragedy, it is inevitable so ... what the hay. He might as well get in on it.
But the worst person in the world in this regard is former Milwaukee County Supervisor Jim McGuigan - one the Board members who brought us the County pension scandal. Having been recalled by the voters for the gross stupidity that may ultimately cost a government already overly burdened with legacy costs a billion additional dollars, you'd think he'd be wandering around Brown Deer in sack cloth and ashes. But no, he authors a blog with the ironic title of "Watchdog Milwaukee." A bit late on that, Jim, don't you think?
McGuigan's defends himself by blaming others. Who would have thought to question claims that, since the stock market had gone up, it would never go down? Who would have doubted that the way to address the potential for early retirements prompted by the County's already ridiculously generous pension plan would be to make it even more generous?
I am perfectly willing to believe that at least some of those responsible for the pension mess were clueless rather than cunning. The Board may well have gotten poor advice from its human relations manager and actuaries, although the idea that one could promise the world to employees without risk to the taxpayers seems - as we say in the law - frivolous on its face.
Still, we ought to be chastened by our mistakes. One would think that, having blundered into a first class mess, McGuigan might display some humility and generosity in questioning the judgment of others.
Not for a minute. McGuigan accuses Walker of "killing off constituents to satisfy a craven lust for power." He says that "[t]onight there are two parents who have lost a son because Walker has decided that politics is more important than safety." He doesn't know - he couldn't possibly know - whether there is any truth to these allegations.
I suppose that one shouldn't be surprised that someone who voted to financially hollow out County government would not be overly concerned about whether he knows what he's talking about. What we do know is that Thursday night two parents lost their child and Jim McGuigan couldn't wait until after the funeral to politicize their loss.
Monday, June 21, 2010
Reflections on the World Cup
Every so often, we have this debate about soccer. Real Americans, we hear, don't like soccer. Even my own son says that he thought ESPN was running binary code (0010011110)but it turned out to be soccer scores.
There are some conservatives who want to say that it is a liberal's game or that there is just something, I don't know, French about it - even though the French don't seem to have the hang of it during this World Cup.
If we want to ruin sports by politicizing it, I can make an argument that soccer is, in fact, a conservative game. The overwhelming difficulty in scoring reflects an understanding that we live in a fallen world. The fact that plays are made on the fly against a changing geometry of play rather than called in the huddle or signalled from the dugout reflects the spontaneous creativity (Hayek's catallaxy)of the market and stands against the Progressive faith in the administrative state. Its unchanging - even archaic rules - reflect a Burkean commitment to tradition.
I don't like the South African vuvuleza horns either, but it is wrong to say that they are being blown "when nothing is happening." In soccer, there is never such a time. A goal can come quickly - either because of a great play or a defensive lapse - and one goal can determine - often does determine - the outcome of a match. For this reason, there is a tension throughout the game. It could be decided at any moment. Or if one team is ahead, that lead is, on the one hand, a huge obstacle but, on the other, one that might be overcome at any moment. I think the purpose of the horns - annoying as they are - is to magnify that tension.
The important thing is that the US team controls its destiny. It is through if it beats Algeria on Wednesday.
There are some conservatives who want to say that it is a liberal's game or that there is just something, I don't know, French about it - even though the French don't seem to have the hang of it during this World Cup.
If we want to ruin sports by politicizing it, I can make an argument that soccer is, in fact, a conservative game. The overwhelming difficulty in scoring reflects an understanding that we live in a fallen world. The fact that plays are made on the fly against a changing geometry of play rather than called in the huddle or signalled from the dugout reflects the spontaneous creativity (Hayek's catallaxy)of the market and stands against the Progressive faith in the administrative state. Its unchanging - even archaic rules - reflect a Burkean commitment to tradition.
I don't like the South African vuvuleza horns either, but it is wrong to say that they are being blown "when nothing is happening." In soccer, there is never such a time. A goal can come quickly - either because of a great play or a defensive lapse - and one goal can determine - often does determine - the outcome of a match. For this reason, there is a tension throughout the game. It could be decided at any moment. Or if one team is ahead, that lead is, on the one hand, a huge obstacle but, on the other, one that might be overcome at any moment. I think the purpose of the horns - annoying as they are - is to magnify that tension.
The important thing is that the US team controls its destiny. It is through if it beats Algeria on Wednesday.
Reflections on Father's Day
I had a nice Father's Day. Had you walked into my kitchen at the right time yesterday, you would have come across three generations of Esenberg males imitating the buzz of the vuvuzela. No, I don't know why (no alcohol was consumed by either adult),but Caleb (almost 2) sure seemed to like it.
Via Kathryn Jean Lopez, President Obama had the following to say about Father's Day:
Literally, this is true. But as an endorsement of the value of family diversity, it is not. Alternative family forms can be nurturing. But the idea that these forms are "just as good" as a family headed by a child's mother and father in a low conflict marriage is not true. Social science is highly politicized but, notwithstanding elite resistance to this idea, the empirical evidence is pretty overwhelming.
The consequence of our refusal to acknowledge this is a devaluation of fathers with devastating consequences. The President recognizes the consequences of that in his own life saying that he still feels the weight of his father's absence. My own Dad left my life when I was around six and, even though I had - and, thank God, still have - a wonderful stepfather, it's something that you never get over.
The President, typically, wants to have a national dialogue on fatherhood. Good idea. Let's hope its candid and not circumscribed by political correctness.
Via Kathryn Jean Lopez, President Obama had the following to say about Father's Day:
Nurturing families come in many forms, and children may be raised by a father and mother, a single father, two fathers, a step father, a grandfather, or caring guardian.
Literally, this is true. But as an endorsement of the value of family diversity, it is not. Alternative family forms can be nurturing. But the idea that these forms are "just as good" as a family headed by a child's mother and father in a low conflict marriage is not true. Social science is highly politicized but, notwithstanding elite resistance to this idea, the empirical evidence is pretty overwhelming.
The consequence of our refusal to acknowledge this is a devaluation of fathers with devastating consequences. The President recognizes the consequences of that in his own life saying that he still feels the weight of his father's absence. My own Dad left my life when I was around six and, even though I had - and, thank God, still have - a wonderful stepfather, it's something that you never get over.
The President, typically, wants to have a national dialogue on fatherhood. Good idea. Let's hope its candid and not circumscribed by political correctness.
Thursday, June 17, 2010
Shark on Wisconsin Eye
Yesterday, I had the privilege to join retired Judge David Deininger (a current member of the Government Accountability Board) and host Steven Walters (former chief of the Journal Sentinel's Madison Bureau) on Legally Speaking, a production of Wisconsin Eye. We discussed the division on the Wisconsin Supreme Court and related issues, including recusal and the disciplinary proceeding involving Justice Gableman. You can watch it here.
We can expect to see a lot from the Court in the coming weeks. It generally tries to wrap up its term by the end of June or the first part of July and generally will decide all cases argued during the term.
There are over forty cases that have been argued this term and have yet to be decided. While they are all important in their own way, some address major unresolved legal and policy questions, including the validity of the Wisconsin marriage amendment,Milwaukee's sick pay ordinance,* and the legislature's $ 200 million dollar "raid" on the Patients Compensation Fund. It will address the Gableman case and a number of interesting criminal cases.
* Over at the law school blog, one of Justice Gableman's outgoing clerks reminds me that the Milwaukee sick pay case, although accepted for review, has not yet been argued. We won't see it decided this summer.
Cross posted at Marquette University Law School Faculty Blog.
We can expect to see a lot from the Court in the coming weeks. It generally tries to wrap up its term by the end of June or the first part of July and generally will decide all cases argued during the term.
There are over forty cases that have been argued this term and have yet to be decided. While they are all important in their own way, some address major unresolved legal and policy questions, including the validity of the Wisconsin marriage amendment,
* Over at the law school blog, one of Justice Gableman's outgoing clerks reminds me that the Milwaukee sick pay case, although accepted for review, has not yet been argued. We won't see it decided this summer.
Cross posted at Marquette University Law School Faculty Blog.
Indicted for Blogging?
The local political blogs are (can't really say "atwitter" any more) but interested in an apparent investigation of the left blogger Chris Liebenthal by the Milwaukee County District Attorney's office. The investigation may have been undertaken in response to a complaint by Citizens for Responsible Government suggesting that Liebenthal, who works for Milwaukee County, has been blogging on government time.
It's not clear that this is true. It may well be that the examples that CRG has made public were posted on days that Liebenthal was on furlough or had a paid day off. CRG looks sloppy on this, although it is possible that there are other examples or that there is a question whether the posts were actually written at the time they posted. (That may be why the DA wants to look at this computer.)
But here's my point. I don't know that this is worth the DA's time. I understand that one may be able to make political blogging on government time fit into an extant criminal statute, but I don't think we ought to. If Liebenthal blogged on company time (and I am not suggesting that he did or that the public evidence suggests that he did), it ought to be a personnel matter.
I thought that about the caucus scandal. I think it about this.
Of course, there is a distinction between this and the caucus scandal. Unlike legislative caucus employees, Liebenthal does not work for legislators who are inextricably involved in politics. But, in the absence of evidence, that some one has turned whatever department he works in into a political operation, I just don't see this as something warranting treatment as a crime.
And maybe the DA will agree.
But Liebenthal ought not to be surprised that some people are happy at his troubles. You play nasty (and he does), you make enemies.
UPDATE: CRG lists additional dates.
It's not clear that this is true. It may well be that the examples that CRG has made public were posted on days that Liebenthal was on furlough or had a paid day off. CRG looks sloppy on this, although it is possible that there are other examples or that there is a question whether the posts were actually written at the time they posted. (That may be why the DA wants to look at this computer.)
But here's my point. I don't know that this is worth the DA's time. I understand that one may be able to make political blogging on government time fit into an extant criminal statute, but I don't think we ought to. If Liebenthal blogged on company time (and I am not suggesting that he did or that the public evidence suggests that he did), it ought to be a personnel matter.
I thought that about the caucus scandal. I think it about this.
Of course, there is a distinction between this and the caucus scandal. Unlike legislative caucus employees, Liebenthal does not work for legislators who are inextricably involved in politics. But, in the absence of evidence, that some one has turned whatever department he works in into a political operation, I just don't see this as something warranting treatment as a crime.
And maybe the DA will agree.
But Liebenthal ought not to be surprised that some people are happy at his troubles. You play nasty (and he does), you make enemies.
UPDATE: CRG lists additional dates.
Tuesday, June 15, 2010
Critical Announcement !!!!
My son Christopher is a trainer for M & I Bank. He is also one of the finalists for the august title of M & I Idol. (It's a very big company!) The competition will take place at 12:30 on the M & I Classic Rock Stage at Summerfest on July 4.
And if you ever need a live band reprising the alternative rock of the 90's, book his band SuperOpus. I can hook you up.
And if you ever need a live band reprising the alternative rock of the 90's, book his band SuperOpus. I can hook you up.
Curb Your Enthusiasm
I've met Mike Tate and I have to confess that I like the guy. He's bright and funny and not quite the zealot that he (and most other politicos) seem to be. I have the same impression of Scot Ross.
I appreciate that the boys and girls that do this kind of work (on my side as well) aren't playing beanbag. As a consultant on my side told me, we can't play nice when the other guys play nasty. I couldn't argue with her, it is a classic game of hawks and doves. To paraphrase Justice Scalia, if one side fights freestyle, the other cannot adhere to the Marquis of Queensbury Rules.
But the attacks on Mark Block as a "convicted criminal" or "criminal fundraiser" are another matter and may themselves have legal consequences.
The statements are false. Block was never convicted of a crime. He was never charged with a crime. The matter in which he and the Wilcox campaign (and, incidentally, blogger James Wigderson in an earlier life) were respondents was a civil action. It was not adjudicated on the merits but settled. The settlement did not amount to a finding of wrongdoing on the part of Block who expressly denied any wrongdoing. He was not fined but agreed, as part of the settlement, to a civil forfeiture. (The complaint as to Brother Widgerson was dismissed.)
As a complaint filed by my friend Mike Dean on behalf of James Zeiler points out, Russ Feingold's campaign agreed to a similar resolution (and paid $ 9000 in forfeitures) in response to allegations of legal violations in his 1998 re-election campaign.
Russ Feingold is, of course, not a convicted criminal or criminal fundraiser. Neither is Mark Block.
The irony is that the statement about Block may itself be a crime. Wis. Stat. sec. 12.05 makes it unlawful for any person to "knowingly make or publish, or cause to be made or published, a false representation pertaining to a candidate or referendum which is intended or tends to affect voting at an election." Violations may result in a fine of not more than $1000, imprisonment of not more than six months or both.
There is, I think, a question on the constitutionality of the statute with cases considering similar statutes in other states going both ways. To be clear, moreover, the Zeiler petition to the Government Accountability Board is not a criminal complaint, but itself seeks only civil remedies. Criminal charges would have to be brought by a prosecutor.
Now I don't think that Mike Tate should be criminally charged. Nor would I encourage Mark Block to sue him for defamation. He would have to show that Tate acted with knowledge of the falsity of his statement or in reckless disregard of its truth or falsity. A defense might be - literally - that Tate (who is not a lawyer) was not venal; he was clueless.
I do not expect Mike Tate or other political consultants to discover the value of civility. This is a war in which the deterrent effect of mutually assured destruction has largely broken down.
But I do think Mike should be careful. This was several bridges too far.
Cross posted at Marquette University Law School Faculty Blog
I appreciate that the boys and girls that do this kind of work (on my side as well) aren't playing beanbag. As a consultant on my side told me, we can't play nice when the other guys play nasty. I couldn't argue with her, it is a classic game of hawks and doves. To paraphrase Justice Scalia, if one side fights freestyle, the other cannot adhere to the Marquis of Queensbury Rules.
But the attacks on Mark Block as a "convicted criminal" or "criminal fundraiser" are another matter and may themselves have legal consequences.
The statements are false. Block was never convicted of a crime. He was never charged with a crime. The matter in which he and the Wilcox campaign (and, incidentally, blogger James Wigderson in an earlier life) were respondents was a civil action. It was not adjudicated on the merits but settled. The settlement did not amount to a finding of wrongdoing on the part of Block who expressly denied any wrongdoing. He was not fined but agreed, as part of the settlement, to a civil forfeiture. (The complaint as to Brother Widgerson was dismissed.)
As a complaint filed by my friend Mike Dean on behalf of James Zeiler points out, Russ Feingold's campaign agreed to a similar resolution (and paid $ 9000 in forfeitures) in response to allegations of legal violations in his 1998 re-election campaign.
Russ Feingold is, of course, not a convicted criminal or criminal fundraiser. Neither is Mark Block.
The irony is that the statement about Block may itself be a crime. Wis. Stat. sec. 12.05 makes it unlawful for any person to "knowingly make or publish, or cause to be made or published, a false representation pertaining to a candidate or referendum which is intended or tends to affect voting at an election." Violations may result in a fine of not more than $1000, imprisonment of not more than six months or both.
There is, I think, a question on the constitutionality of the statute with cases considering similar statutes in other states going both ways. To be clear, moreover, the Zeiler petition to the Government Accountability Board is not a criminal complaint, but itself seeks only civil remedies. Criminal charges would have to be brought by a prosecutor.
Now I don't think that Mike Tate should be criminally charged. Nor would I encourage Mark Block to sue him for defamation. He would have to show that Tate acted with knowledge of the falsity of his statement or in reckless disregard of its truth or falsity. A defense might be - literally - that Tate (who is not a lawyer) was not venal; he was clueless.
I do not expect Mike Tate or other political consultants to discover the value of civility. This is a war in which the deterrent effect of mutually assured destruction has largely broken down.
But I do think Mike should be careful. This was several bridges too far.
Cross posted at Marquette University Law School Faculty Blog
Monday, June 14, 2010
The Obama Administration's War on Scientists
Let's say that the Bush administration had consulted with a group of biologists on stem cell research. Imagine that it had placed summarized that consultation and made some policy recommendations in a memorandum that had then been approved by these scientists. The report went on to stated that the report's recommendation had been peer reviewed by the listed scientists.
But before it was released, administration officials - oh, let's say a Cabinet level secretary - added a recommendation that there be a blanket moratorium on stem cell research. It retained the language that the scientists had "peer-reviewed the recommendations, but the scientists never saw that recommendation for a blanket recommendation. They did not "peer review" it. They do not agree with it.
It'd be another example of the Bush administration's so-called "war on science."
This very thing just happened but not, obviously, in the Bush, but in the Obama administration. A peer reviewed report on off shore drilling was modified - after it was reviewed by its scientists - to include Secretary Ken Salazar's call for a blanket moratorium on off shore drilling. The scientists have now said that they never saw the language on a blanket moratorium (they had only approved the recommendation for a more limited moratorium) and do not agree with it. They say that the "[t]he Secretary should be free to recommend whatever he thinks is correct, but he should not be free to use our names to justify his political decisions.
Secretary Salazar has apologized. Secretary Browner, apparently unable to understand that there is a difference between acting on information provided by others and stating that the others have reviewed your action, has said that they did nothing wrong.
Glenn Reynolds says he is beginning to lose confidence in there people.
But before it was released, administration officials - oh, let's say a Cabinet level secretary - added a recommendation that there be a blanket moratorium on stem cell research. It retained the language that the scientists had "peer-reviewed the recommendations, but the scientists never saw that recommendation for a blanket recommendation. They did not "peer review" it. They do not agree with it.
It'd be another example of the Bush administration's so-called "war on science."
This very thing just happened but not, obviously, in the Bush, but in the Obama administration. A peer reviewed report on off shore drilling was modified - after it was reviewed by its scientists - to include Secretary Ken Salazar's call for a blanket moratorium on off shore drilling. The scientists have now said that they never saw the language on a blanket moratorium (they had only approved the recommendation for a more limited moratorium) and do not agree with it. They say that the "[t]he Secretary should be free to recommend whatever he thinks is correct, but he should not be free to use our names to justify his political decisions.
Secretary Salazar has apologized. Secretary Browner, apparently unable to understand that there is a difference between acting on information provided by others and stating that the others have reviewed your action, has said that they did nothing wrong.
Glenn Reynolds says he is beginning to lose confidence in there people.
Thursday, June 10, 2010
If it's a Diet, it's Atkins
There are millions - even billions - awaiting the creation of the first truly effective painless diet. If someone can follow Drs. Melik and Aragon in Sleeper and figure out how to lose weight on steak, cream pies and hot fudge, there is serious money to be made.
Tom Barrett is giving the political equivalent a try. He's going to put Madison on a diet, but it won't hurt a bit. It's not that his plan doesn't have some good ideas but what they have in common is that no one (save prisoners, persons engaged in "fraud" and "waste" and some unidentified middle managers)must make the slightest sacrifice. Turn off the computers at the end of the day, go paperless, provide something called "accountability in state contracting training" and there's a billion dollars for you.
Count me skeptical. Politicians have been promising easy savings to avoid addressing spending cuts or tax increases for at least as long as I have been sentient. I've got no problem with most, if not all, of Barret's ideas but I wouldn't count the money just yet.
Tom Barrett is giving the political equivalent a try. He's going to put Madison on a diet, but it won't hurt a bit. It's not that his plan doesn't have some good ideas but what they have in common is that no one (save prisoners, persons engaged in "fraud" and "waste" and some unidentified middle managers)must make the slightest sacrifice. Turn off the computers at the end of the day, go paperless, provide something called "accountability in state contracting training" and there's a billion dollars for you.
Count me skeptical. Politicians have been promising easy savings to avoid addressing spending cuts or tax increases for at least as long as I have been sentient. I've got no problem with most, if not all, of Barret's ideas but I wouldn't count the money just yet.
Wednesday, June 09, 2010
The President Apparently Has Standards After All
During the election campaign, the President famously said that he would meet with our enemies. He'd talk to anyone. Since the election, he has proved that he will bow to anyone.
But he has his limits. He apparently has not spoken to BP CEO Tony Hayward. You know, they guy who controls technology that the federal government does not have and whose neck our boot is supposed to be on while we kick his ass?
Of course, I don't think that Tony Hayward and Barack Obama would hop on a boat and git 'er done. It is the particular conceit of guys like this to suggest that they can do things like that (or at least make them happen). But a few well placed words from the most powerful man on earth at the right time (it's really too late now)might have helped - both practically and politically. It may have concentrated the mind much sooner than events did.
But he has his limits. He apparently has not spoken to BP CEO Tony Hayward. You know, they guy who controls technology that the federal government does not have and whose neck our boot is supposed to be on while we kick his ass?
Of course, I don't think that Tony Hayward and Barack Obama would hop on a boat and git 'er done. It is the particular conceit of guys like this to suggest that they can do things like that (or at least make them happen). But a few well placed words from the most powerful man on earth at the right time (it's really too late now)might have helped - both practically and politically. It may have concentrated the mind much sooner than events did.
Monday, June 07, 2010
Back From DC
Blogging has been glacial as I've been working on four law review articles and just returned from a talk at the annual meeting of University Faculty for Life at Catholic University Law School in DC.
Some random observations:
I didn't do anything touristy in DC, but I did notice an absence of hagiographic Obama merchandise for sale compared to the last time I was there (November). I suppose that stuff has a limited shelf life, but still ....
My former partner Fred Geilfus has a column in the BizTimes discussing Accountable Care Organizations, a concept that is to be tested under the Obama health care bill - although I would be surprised if it hasn't already been tested in other contexts. The idea is to move away from fee for service on the theory that this creates incentives to provide more service. As Fred knows, this is an issue with lawyers as well. Hourly fees create an incentive to run the clock. Folks in the legal community talk all the time about moving to different fee structures and sometimes they do. But it's not easy and comes with its own costs. My impression is that, for twenty five years or so, it is far more talked about than implemented. I don't know that ACOs are a bad idea but I think, as with so much of ObamaCare, it falls into the trap of thinking that we can get something for nothing. Nor is it clear why, if they work, they wouldn't develop in a true market.
Dan Bice points out that Ron Johnson opposed the proposal to remove the limitations period for suits against organizations claimed to be responsible for the crimes of child sex abusers. Good for Ron Johnson. The bill was a bad idea and opposition to it does not imply a lack of sympathy for victims or lack of revulsion for perpetrators (who are almost never the ones who have to pay civil judgments).
Responding to Johnson's opposition to the bill, Peter Isley of SNAP had a moment of candor - otherwise known as a gaffe - when he said that ""It's interesting they send a Lutheran down to fight a Catholic cause." He wonders "what would Martin Luther say?" The idea that Isley thinks Lutherans should be hostile or indifferent to the concerns of Catholics says more about Isley than it does about Johnson.
It has been my impression that the only studies available show that Catholic priests are no more likely to engage in pedophilia than other groups that work with children. (I was surprised by this.) Those who work for the state generally will not cause litigation to be brought against it because the government is generally immune from that form of liability. Those who work for non-episcopal or hierarchical churches won't cause lawsuits to be brought because their employers are not deep pockets. There have been lawsuits against other churches with episcopates like the Lutherans but the Catholic Church is so much larger that it is always going to seem like a predominantly Catholic problem.
This is not to say that the Church's response hasn't often been disgraceful. But whether to bankrupt a charitable organization for the sins of the dead and retired is another question.
Finally, via Richard Dudley Martin and Bill Tyroler, my attention is drawn to this.
Some random observations:
I didn't do anything touristy in DC, but I did notice an absence of hagiographic Obama merchandise for sale compared to the last time I was there (November). I suppose that stuff has a limited shelf life, but still ....
My former partner Fred Geilfus has a column in the BizTimes discussing Accountable Care Organizations, a concept that is to be tested under the Obama health care bill - although I would be surprised if it hasn't already been tested in other contexts. The idea is to move away from fee for service on the theory that this creates incentives to provide more service. As Fred knows, this is an issue with lawyers as well. Hourly fees create an incentive to run the clock. Folks in the legal community talk all the time about moving to different fee structures and sometimes they do. But it's not easy and comes with its own costs. My impression is that, for twenty five years or so, it is far more talked about than implemented. I don't know that ACOs are a bad idea but I think, as with so much of ObamaCare, it falls into the trap of thinking that we can get something for nothing. Nor is it clear why, if they work, they wouldn't develop in a true market.
Dan Bice points out that Ron Johnson opposed the proposal to remove the limitations period for suits against organizations claimed to be responsible for the crimes of child sex abusers. Good for Ron Johnson. The bill was a bad idea and opposition to it does not imply a lack of sympathy for victims or lack of revulsion for perpetrators (who are almost never the ones who have to pay civil judgments).
Responding to Johnson's opposition to the bill, Peter Isley of SNAP had a moment of candor - otherwise known as a gaffe - when he said that ""It's interesting they send a Lutheran down to fight a Catholic cause." He wonders "what would Martin Luther say?" The idea that Isley thinks Lutherans should be hostile or indifferent to the concerns of Catholics says more about Isley than it does about Johnson.
It has been my impression that the only studies available show that Catholic priests are no more likely to engage in pedophilia than other groups that work with children. (I was surprised by this.) Those who work for the state generally will not cause litigation to be brought against it because the government is generally immune from that form of liability. Those who work for non-episcopal or hierarchical churches won't cause lawsuits to be brought because their employers are not deep pockets. There have been lawsuits against other churches with episcopates like the Lutherans but the Catholic Church is so much larger that it is always going to seem like a predominantly Catholic problem.
This is not to say that the Church's response hasn't often been disgraceful. But whether to bankrupt a charitable organization for the sins of the dead and retired is another question.
Finally, via Richard Dudley Martin and Bill Tyroler, my attention is drawn to this.
Friday, May 28, 2010
Leonard Pitts' Way Back Machine
Patrick McIlheran is properly put out by Leonard Pitts' column claiming that Rand Paul's musings about the Civil Rights Act prove, once again, that social conservatives are always "against us" - "us" being African Americans. Pitts cites arguments against the Act made by segregationists like Richard Russell which, in his view, are similar to Paul's defense of private property.
Pitts commits two errors - a category mistake and an anachronistic fallacy. First, it is not clear to me that Paul is a social conservative. He is pro-life, but there is a huge tension between social conservatives and libertarians. (The most preeminent social conservative in the academy, Robbie George, recently referred to libertarianism as "heresy.") More fundamentally, Richard Russell and other Southern Democrats who opposed the civil rights acts were not necessarily "conservatives" in the sense that we use the term today. They were often progressives who tended to support New Deal and Fair Deal policies. Russell, for example, had little or no concern about limiting the power of the federal government or respecting private property in other areas. He was a staunch supporter of the New Deal and considered his most important legislative accomplishment to be the National School Lunch Act of 1946.
Second, it makes little sense to speculate about what Sarah Palin or some other contemporary conservative "would have" done in 1964. Their political views have been formed during a time - and consistently with - a national consensus that racial discrimination is wrong. (In fact, opposition to affirmative action is an application of that principle, albeit not one that all of those who oppose racial discrimination accept.)These people are what they are. Pitts doesn't like them. But it is intellectually dishonest to smear them by imagining that, if they were different people born at a different time, they would have taken positions that they do not, in fact, take.
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