Thursday, April 26, 2007

Throw down at the Supreme Court

Yesterday, the Wisconsin Supreme Court dismissed the lawsuit brought by gubernatorial candidate Mark Green against the State Election Board. Although the Journal-Sentinel blurb on the case does not go into it, the dismissal was not a ruling on the merits. The parties stipulated to the dismissal.

As you may recall, the issue in the case was the Board's order that Green return $450,000 that had been raised through legal contributions to his federal campaign account. This money could not have, in the first instance, been raised for his state campaign but the Election Board had allowed such transfers in the past.

The day after he made the transfer, the Board met and decided (in an essentially partisan vote) that, now, it would not permit the transfer. Green asked the Supreme Court to review the Board's action. For procedural reasons, he needed to do it by filing an original action rather than by appeal from a lower court decision. This is a rare thing and the Supreme Court (by a 4-3 vote) said that it could not decide the matter before the election.

In the election, the issue was never Green's ability to use the money, but the Doyle campaign's allegation that this all meant that Green "broke the law" and was corrupt. This was critical to Doyle because of the perception that he does not exactly follow the Marquis of Queensbury rules when it comes to raising money. One of the two themes of his campaign was to neutralize this weakness by suggesting that Green was just as bad.

In that context, the court had no option that would not inject it into the campaign. Refusing to rule was, in effect, ruling against Green.

Nevertheless, the majority decided to punt and did so by a 4-3 vote in which the perceived conservatives all dissented.

Concurring in the decision to accept the parties' agreement to dismiss, Justice Prosser takes the court to task for refusing to hear the case back when it still meant something. He contrasts its decision last fall with a famous and historic decision, Bashford v. Barstow, in which the court took up the question as to who actually won the 1855 gubernatorial election in the face of the incumbent governor's threat to refuse to abide by its decision.

Justice Crooks takes Prosser to task, arguing that the court could not have heard the case last fall because there were factual disputes (the Supreme Court is not really equipped to deal with those) and the court did the best it could.

I have not studied the matter enough to express an opinion on who is right, but it appears that, by December, the Board had essentially stipulated to all the necessary facts. It is unclear what had changed during that time.

I do believe that what Doyle and the State Election Board did to Mark Green was atrocious. Perhaps the case was not in a posture for the court to hear it, but its failure (whether justified or not) to address the issue was extremely unfortunate.

This kind of controversy is great for a guy, like me, who is developing a law school course on the Wisconsin Supreme Court. My guess is that it makes it a bit frostier around the water cooler.


Anonymous said...

While I understand Prosser's frustration and concern, his opinion was totally uncivil and injudicious.

He could and should have made his point with more appropriate and less name-calley language. A lawyer who wrote like that would face sanctions.

steveegg said...

Anon - I take it you don't read too many SCOTUS decisions. You often find Prosser's language in the dissents.

Rick - I can tell you exactly what changed between the fall of 2006 and December 2006 - Doyle won re-election, so there was no longer any need for the SEB or the majority of the Supreme Court to deny the facts.

Anonymous said...

Actually, I read plenty. While Scalia, in particular, can be aserbic and, as many think, inappropriately bitter, he rarely accuses the court of being corrupt as Prosser basicall did.

And Steve, I think the court screwed this one up and that Prosser, in substance is correct. I just think his opinion was unprofessional and reflects poorly on the court as an institution.


Anonymous said...

Perhaps Anon would offer specific language that h/she thinks would make Prosser's point.

Anonymous said...

I think it's a false premise that Green would have won if the Court acted prior to the election because we still don't know how the court would have ruled.

It would have been good to know how the Supreme Court would have ruled rather than this stipulated dismissal.

Anon 2

Anonymous said...

Prosser's statement that the court did "not care" about the legal rights of a party or the legitimacy of an election is, in context, and especially when coming from a justice and not a columnist or pundit, an accusation that the court knowingly flouted its duty and got to a result it knew was wrong, if only by inaction. In the judicial setting, this is akin to corruption.

Also, his business about it not being a "great court" when discussing a case in which the court basically held the state together, is another accusation that it is knowingly doing wrong.

I myself think Green should have been heard in a timely fashion and think it would have been a close case.

But, the tone and language of Prosser's opinion is simply unprofessional and bad for the court as an institution. Stated differently, if a jurist cannot register very strong disagreement without angrily accusing the majority of improper motive, s/he has a real skill deficit.

Having said that, I have generally found Prosser to be an impressive justice.