Monday, January 31, 2011

Walker and wetlands

I'm not offering any opinion on the constitutionality of Gov. Walker's proposed bill exempting a parcel of land in Brown County from certain wetlands regulations. But there have been some misstatements in the blogosphere.

Blogging lawyer Mike Plaisted notes what he refers to as the state constitution's prohibition of private and local bills. Mike admits that he's a bit rusty on this. After all, he practices criminal law. But the thing is that there is no such general "prohibition" and certainly not in the provision that he cites. Art. IV, sec. 18 simply states that "[n]o private or local bill which may be passed by the legislature shall embrace more than one subject, and that shall be expressed in the title." In other words, you can pass such a law in a single subject properly titled bill. (There is another provision, Art. IV, sec. 31, that does purport to prohibit certain type of special and private bills but it isn't applicable here.) Art. IV, sec. 18 is a procedural requirement, not a substantive prohibition.

Of course, Governors and legislatures have run circles around the requirement of a single subject, properly titled bill for years and it is often done as part of the budget bill. There are perfectly legal ways to do so. Mike seems to think this is a Republican trick. Actually, it's been a trick of whoever has power.

Exempting this project from the normal adminstrative review process reminded me, not of the Court of Appeals case that Mike refers to, but of Tony Earl's effort to place a prison in the Menomonee Valley. In that instance, the legislature exempted the project from normal environmental review and the Supreme Court stopped it, albeit on equal protection grounds.

As for the merits of "destroying wetlands," I can only say this. I am not an environmental lawyer but I have represented enough clients on developments to know that what the DNR thinks is a wetland would not necessarily be recognized as such by the rest of us and that wetlands protection in Wisconsin can approach a fetish as can the desire to protect things like suspected snake habitats. You may notice that large vacant parcels awaiting development are often farmed. There is a reason for that which has nothing to do with the desire to earn a few bucks while waiting for a buyer.

Cap Times can' be serious about the supreme court

Recently, I chided the Cap Times for saying that "no serious observer" would doubt that Louis Butler would have been easily confirmed had he been white. The fact is that every serious observer should doubt that. Whether you think its proper or not, Butler is being opposed for his participation in a hard left swing on the Wisconsin Supreme Court during his tenure there. If he was the judicial clone of Clarence Thomas, the people who oppose him now would be falling all over themselves to support him. But the President would never have nominated him. Race, happily, has nothing to do with it.

Today it trots out that tired old phrase again, announcing that "no serious observer" would blame Chief Justice for the conflict on the Wisconsin Supreme Court. The unimaginative and (apparently) stylistically stunted editorial board pronounced themselves "taken aback" when Justice Prosser did so at a debate sponsored by the Milwaukee Bar Association. (NB: I moderated that debate.) The Cap can't understand this given that she "presided over the court when it was getting high marks for collegiality and efficiency."

The Cap Times needs to get out more. She did no such thing. In fact, no matter what you think of the Chief Justice, any "serious observer" would have to acknowledge that her tenure has been marked by conflict among the justices. It may not be her fault but she has absolutely not presided over a Court that has ever gotten high marks for collegiality.

That serious observer, apparently unlike the Cap Times, would recall that in 1999 - three years after she became Chief Justice and began to "preside" - a majority of her colleagues recruited a candidate - Sharon Rose of Green Bay - to run against her.

Not so collegial - but not ideologically based. The anti-Abrahamson group included Justice William Bablitch - a liberal who largely voted with the Chief in contested cases - and current Abrahamson ally Pat Crooks. It did not, as he pointed out in the debate, include Justice Prosser who was new to the Court.

Things quieted down - at least publicly - during the period that Diane Sykes was on the Court. This shouldn't surprise. There are few people on earth nicer than Diane Sykes. But contention flared up again after Judge Sykes was replaced by Louis Butler and the Court lurched left and into controversy.

I agree that the Chief Justice is very smart and has a strong national reputation. I have always found her to be charming on a personal level. But her tenure as Chief has been marked by extraordinary factionalism among the Justices. That's simply a fact that any "serious observer" would know.

Sunday, January 30, 2011

Lawyers Behaving Badly

Sunday morning's Milwaukee Journal Sentinel informed us that at least 135 lawyers with felony convictions are practcing law. Inside, it had the mug shots of twelve whose licenses and been suspended or revoked for criminal behavior. I looked over those mug shots and, sure enough, it seemed accurate. I was the referee who recommended that two of them be allowed to practice again. (I was initially the referee in Brian Burke's case but wound up recusing myself because I had written that no one should have gone to jail behind the caucus scandal.)

The article raised some interesting issues. Maybe we should automatically suspend lawyers upon conviction of a felony, although I will note that OLR not infrequently gets emergency suspensions pending completion of a full disciplinary proceeding. Perhaps there are certain crimes that should result in permanent suspension, although I am skeptical that we can write a rule that is better than the Court's exercise of judgment on this question. There are other issues that the reporters may want to pursue such as who gets disciplined, the resources devoted to the system and the exercise of charging discretion. I am also aware that there are a few notorious repeat offenders that the Court seems to have given a few too many chances.

But I don't believe that the system is "easy on lawyers." Reinstatement - whether from revocation or suspension (suspended lawyers are not automatically accepted back to the bar when the period of suspension is completed)- is not easy. One must retain counsel, file a petition requesting reinstatement, provide OLR with essentially any information it asks for and then have a public hearing before a referee. I recommended the reinstatement of Charlie Hausmann and Hazel Washington after evidentiary hearings in which I heard OLR's opposition and from witnesses called by both parties.

After the best deliberation I am capable of, I was convinced that both Mr. Hausmann and Ms. Washington understood what he or she did wrong, were remorseful, had paid a sufficient price and were unlikely to reoffend. When I have not been convinced of these things, I have recommended that reinstatement be denied. (My report in the Washington case was 22 pages.) The Journal Sentinel's statement that 60% of lawyers who apply for reinstatement get it does not shock me. Given the work involved, people whose cases are such that reinstatement is unlikely don't apply.

I do not believe that either attorneys Washington or Hausmann has gotten into more trouble. In fact, Mr. Hausmann later accepted my invitation to speak to law students about how he came to break the law and wind up in federal prison. He was not easy on himself. (I think he still gives this talk.)

It has never seemed to me that OLR is particularly easy on lawyers. As the paper noted, very few lawyers get charged but that's a meaningless number without knowing how many complaints the office gets. I can say that the office does not have a great deal of resources which may be one reason why more lawyers are not disciplined. It's easy to say that "lawyers should not regulate lawyers" and "doctors should not regulate doctors." But the intractable fact is that no one else can. Practicing law involves the application of professional expertise and judgment. While some cases are easy, others are not. It's hard for me to see how a system of discipline in which the decisionmakers lack the training and experience to assess the conduct of the accused would be "better."

A lot of this comes from the notorious case of Calument County DA Ken Krantz who made sexual advances upon a victim in a domestic abuse case. I don't know why OLR whiffed on that one and I am mindful of the fact that it can't defend itself. The facts as we know them (which I suspect are accurate) may not be same as the facts that were available to it. Putting that aside, he violated a number of rules and the alleged offense was serious - very serious. But one failure does not define the system.

A Return to Sunday Songs

It's Sunday and it's January. January in Wisconsin has very few redeeming qualities and can only be endured through hope. I haven't done this for awhile but since one of my resolutions for 2011 is to return to Shark and Shepherd (I hope to), here's a hopeful song for Sunday from the energetic young Grace Potter and the Nocturnals. The song seems to be about friendship surprised by love but that' close enough enough and I really like it.

For those of you who prefer classic rock, here is Potter with Joe Statriani on Neil Young's Cortez the Killer. I love the way she drops Young's jarring lyric on human sacrifice. I get the point (the lyrical paen to Montezuma isn't to be taken literally)but it makes the song feel like multicultural sop and it has, I think, a deeper and more interesting point than that.

Finally, for a broader version of hope, here are Potter and the Nocturnals one more time with "Big White Gate."

Wednesday, January 26, 2011

Supreme Court Race is On.

I just got off the air on WSAU in beautiful Wausau. The subject was the Wisconsin Supreme Court race and that will be the subject tomorrow at a forum sponsored by the Milwaukee Bar Association. The candidates for the Wisconsin Supreme Court and Milwaukee Circuit Court will be there. Yours truly will moderate.

One of the odd dynamics of this race will be the new public financing law. My sense is that it will result in rather anemic efforts by the candidate campaigns. The public grants are not adequate to run a statewide race and, if the race proves to be competitive, independent organizations will spend multiples of what the campaigns spend on media. Although one candidate, Marla Stephens, has "declined" public funding, correctly pointing out that, as a nonincumbent, she can't possibly run a credible statewide race on the amount provided. Nevertheless, word on the street is that she simply was unable to get her act together in time to qualify and, although she certainly is a serious and credible candidate, it is unclear that she can raise much more than the public grant. (I am unaware of her personal resources or willingness to commit them to the race.) Once again, it appears that the tenor and substance of the debate will be beyond the control of the candidates.

The new law seeks to address this by providing some additional public funding to candidates who face opposing independent expenditures (which will be, at least, both of the general election candidates.) But there are two problems.

The first is that these "matching funds" (and they are far from adequate to actually match what is likely to be spent) are only triggered by express advocacy for or against a candidate. That is easily avoided.

But there will probably be no need to do so. The "matching funds" provision is probably unconstitutional. A similar provision in Arizona is currently under review by the United States Supreme Court and that Court enjoined the operation of the law during the last election cycle. That is very likely to happen here as well so that the matching funds, even if they are triggered, will never be provided.

Who Cares?

Do you pay much attention to the State of the Union Address? I don't. It's largely a poorly written litany of platitudes and promises that will not only not be fufilled, but won't even be attempted. It is nothing like the typical "State of the Company" address that one often sees in the private sector in that it makes absolutely no attempt to be candid about what the state of the union actually is. It is a campaign speech followed by another campaign speech by the opposition. The particulars of whatever the President says will bear little resemblance to what happens in the year to follow.

This State of the Union seems to be even less consequential than most years. The President is chastened. He pursued a bold change agenda in the first two years of his term and achieved some of it. At least for now, the voters don't much like it. So he has retrenched. The collectivism seems to have been toned down and the difficult choices, although acknowledged, either elided or deferred. (How any American President can continue to duck entitlement reform and call himself responsible is beyond me, but this one continues to do it. Unfortunately, his predecessors showed him the way.)

The problem is that Paul Ryan was right in his response: "We still have time . . . but not much time." I think that the President knows that, but he also fears that his preferred nostrums won't fly. So he plays small ball and temporizes. Ryan, like it or not, has a plan. The President gave a speech.

Thursday, January 20, 2011

The Cap Times Didn't Get the Memo

And ought to be ashamed of itself. Amidst calls by President Obama and others for greater civility in political discourse, the virtual paper from Madison decided to run an editorial on the Senate's failure to confirm Louis Butler's nomination for federal judgeship. That's certainly a salient topic and there are many interesting things to say about it.

But one of those things is not that the Butler nomination has been held because he is black. There is not a shred of evidence for that. This is not the only nomination that has been held and it is not hard to see why it is being held. While, as I have repeatedly said, Louis Butler is a smart and gifted lawyer, he espouses a judicial philosophy with which many disagree and, during his tenure on the state supreme court, he demonstrated a willingness to pursue it rather aggressively.

We can disagree about that philosophy and about the extent to which it ought to play a role in confirmation proceedings, but that is the issue in the Butler nomination.

Apparently concluding that genuine discourse would be too hard, the Cap Times has decided to play the Confederacy Card. The problem is Jeff Sessions (he's from Alabama) and those other GOP Senators - many of whom are from ... the South! The Cap Times says: "No serious observer doubts that, were Obama to nominate a white male
who was less qualified and less committed to a constitutionally based
application of the rule of law, the Senate would move quickly to
confirm the president’s pick."

Actually, I think that every serious observer doubts - or should doubt - that. Were Louis Butler white, the conservatives opposing him would be just as opposed. If Louis Butler espoused the same judicial philosophy as Clarence Thomas, they would love him (as they love Thomas; he's a rock star at conservative events).

There isn't a shred of evidence to the contrary. This is irresponsible and demagogic calumny. I'm not surprised that the piece is unsigned. If I had anything to do with it, I'd be ashamed too.

Wednesday, January 19, 2011

Belling and the "Jewish" Power Structure

I don't blog much about Mark Belling. He has said and done things which I think make my side look bad and I don't much appreciate it. I rarely hear him (I must admit that, if I am in the car at that time, I am a bit more partial to the "Big Show" on 1250 AM) and did not hear the show in which he commented on the way in which certain powerful business people in Milwaukee "band together" to look out for one another. In commenting on the efforts of Steve and Greg Marcus and David Uihlein to block the Marriott Hotel project, he observed that members of this "old boys network" are friends and belong to the same country club. Inexplicably, he also noted that "[T}he fact that the majority of them are Jewish may be neither here nor there.”

My first reaction to this was that it is just screwy. Putting aside the Marcus' opposition to the Marriott (of course, they don't want a new competitor downtown anymore than the Packers welcomed the Bears' signing of Julius Peppers), I think it's safe to say that there is an old boys network (although it is less strong than it used to be). But it is also safe to say that it is predominantly not Jewish. To the extent that Belling's comments reflect bias, it is this weird trope that Jews have much more power than they do.

Perhaps Belling has imbibed that and it lead him to say something that is, at best, curious and, at worst, sort of ridiculous. But, having listened to the remark, I don't know that he consciously intended to express anti-semitic sentiment. He did present the (false)"fact" that a majority of the local power structure is Jewish as sort of a throwaway that didn't mean anything. While we could assume bad faith from the fact that he mentioned it at all, I'm not sure that accomplishes anything and may well be inaccurate. I don't know what's in his heart and I'm not going to presume that it includes anti-semitism.

By way of full disclosure, I am not Jewish in the sense that my Mother was a gentile and I was raised as a Catholic. But my father's family were ethnic German Jews. I would not have survived Nazi Germany and I suspect I have many unknown relatives who did not. My daughter-in-law is Jewish and my grandsons are being raised in the Jewish faith and tradition. So I don't take anti-semitism lightly. I'm just not willing to play that card here.

But my final reaction is that, if he's just can the distracting comment, this is what Belling does best - although I don't hear much of him doing it anymore. He is very good when it comes to sports and the inner machinations of power in the region. He is, I think, really a better reporter than an opinion guy. If he's do more of it, I might spend less time with Gary, Sparky and the gang.

Shark on Dead Tree

My latest column in the Milwaukee Journal Sentinel, commenting on the alchemy of schemes for job creation is here.

Regular readers of this blog will know that I am skeptical (actually derisive) of the notion that the President (much less the Governor) runs the economy and that the government ever "creates" jobs.

But I do part ways with some conservatives in suggesting that government can contribute to the creation of the conditions under which jobs may be created by doing something other than getting out of the way. There is infrastructure which is, at least as a practical matter, more efficient for government to provide. The set of those tasks is sunstantially smaller than the set of things that government currently does but it's not empty.

Tuesday, January 11, 2011

The Scoop on Redistricting

I'm sort of amused by the minor contretemps over whether the legislative Republicans ought to allow the legislative Democrats money to hire their own counsel for the upcoming redistricting.

The Wisconsin legislature hasn't successfully redrawn district lines in almost 80 years. The reason is that we generally haven't had single party control in a redistricting year (which, since the Supreme Court's "one-man, one vote" decisions in the '60s, has been every ten years).

As I pointed out in a pre-election column in the Milwaukee Journal Sentinel, single party control of the state house and both legislative chambers almost guarantees that this year will be an exception. Because there are relatively few ways to challenge a properly drawn plan, the redistricting this year will turn out to be what the Republicans want it to be.

This is because political gerrymandering is nonjusticiable, i.e., a plan can't be challenged in court because it is "unfair" to one party or another or was designed to protect incumbents and limit competition. Four justices of the current Supreme Court have held that this is a political matter and a fifth (guess which one) isn't sure it is but hasn't been able to imagine judicially manageable standards so, at least for now, won't entertain such challenges.

One can challenge a plan as a violation of the rights of minority voters and that is where drawing the plan raises legal questions. A plan can't improperly deprive minorities of the opportunity to elect candidates of their choice and that may require drawing supermajority minority districts (because minority voter turnout is normally lower than average).

But here's the thing. Creating such districts generally favors Republicans because it requires "packing" minority voters and, since these voters tend be overwhelmingly Democrats, that means packing Democrats. When, for example, we draw Gwen Moore's district to contain lots of minorities, we make it overwhelmingly Democratic and the surrounding districts become more Republican.

Doing this in the right way requires lawyers and that is why Fred Kessler's comments that there is no need for lawyers in redistricting and the the legislature's decision to retain Michael Best and the Troupis Law Offices could only have been a sop to lawyer campaign contributors. Jim Troupis is one of the best redistricting lawyers in the country. To say that he was hired because he gave money is one of the stupidest things I've heard a politician say on the subject.

Of course, it is true that one could (particularly if there were no minority vote dilution concerns) redistrict without lawyers. It is possible to program a computer to draw compact and contiguous districts of equal size that respect, to the extent possible, political and geographic boundaries.

But that would probably tend to favor Republicans because Democratic voters tend to be geographically concentrated. Democrats who are upset this year because of the Republicans' control over redistricting ought to be careful what they wish for.

Civility Is A Big Tent

The idea that the tragic shootings in Arizona over the weekend are attributable to the Tea Party, Sarah Palin, the right wing or "anti-government" rhetoric is too stupid to merit discussion. It is itself an example of the debasememnt of our political conversation.

It's not new. If, for example, you watch taped coverage of John F. Kennedy's assassination, there was an undercurrent of "blame the right wing" before Air Force One had even returned to Washington. To a large degree that bit of folk wisdom has continued to this day. Yet Kennedy was shot by a communist.

Still, I'm all for more civility in political discourse and have frequently blogged about it here. The first step in civility is to avoid the automatic presumption that your opponents are ignorant or acting in bad faith; that they are somehow not like you.

So I agree with Rep. Tammy Baldwin that we ought to find ways of deliberation and discourse that "respect difference of opinion." One place to start, of course, is to refrain from promiscuous allegations of "bigotry" and "hatred." It might continue with care about accusing others of "destroying" the government or leaving people to die.

Friday, January 07, 2011

2011 Predictions

I wanted to absorb a bit of the new year before making a few predictions. I did OK last year so I'm encouraged to try again.

1. The Packers will lose a close game to the Eagles but will edge out the Lions for the NFC North title in the fall.

2. The Brewers will be much better but not good enough to get past the Reds. They take the wild card but that's as far as they go.

3. The House votes to repeal ObamaCare. The Senate doesn't. The plan continues to be a riot of unintended consequences and unnoticed little gems.

4. Scott Walker has a historically successful legislative year that will end with public employee unions in full scale apoplexy. Here are a few: Concealed carry, Voter ID, a return to restrictions on local school spending and salaries, some significant move away from retiree health care and defined benefit plans and expanded school choice.

5. David Prosser is easily reelected to the Wisconsin Supreme Court.

6. The United States Supreme Court strikes down the matching funds provision of the Arizona Clean Elections Act. This means that the provisions in the Impartial Justice Act are gone as well. I don't think the Court cites my article but it should.

7. I have a feeling. The Supreme Court also strikes down the individual mandate in ObamaCare.

8. I have another feeling. Unemployment falls to 7%. Why? I don't know. I just think it's time.

9. There is a major move to abolish Milwaukee County as a distinct government entity and rumblings of MPS bankruptcy.

10. Watch this blog for big news.

Wednesday, January 05, 2011

Mayfair Need Only Avoid Unforced Errors

I agree with everyone who says that Mayfair needs to react proactively to Sunday's incident. I have long thought that it is a nonstarter to tell people that they ought not to be concerned with their security when they are concerned. Mayfair cannot let things like that happen and it's going to mean further restrictions on the use of the mall by young people. There is no point in discussing that.

My sense is that those efforts will be successful. Mayfair is not Northridge. It won't make Northridge's mistakes (if for no other reason than Northridge made them) and, more importantly, it doesn't bear the demographic burdens that Northridge came to bear. Northridge was located in an area that became increasingly ill suited for retail development both because of its distance from and inaccessibility to the residents of higher income areas and the problems that came to be posed for safety in the area from large public housing projects in the vicinity. I don't think that Northridge was ever as unsafe as many people thought it was but there is no question that the surrounding area detioriated.

Northridge may have, moreover, contributed to its own problems by moving away from retailers that would be more attractive to the more affluent shoppers to its far west and north, but that may have been a result more than a cause.

Mayfair, on the other hand, is located on the cusp between two relatively affluent suburbs and, most importantly, is easily accessible to the rest of the metropolitan area because it is at the confluence of two major freeways.

Monday, January 03, 2011

2010 Predictions Revisted

Predictions for 2010
1. Scott Walker will become the 45th Governor of the state of Wisconsin and the first elected from Milwaukee until Julius Heil in 1939. The Democrats will continue to hold both houses of the legislature by razor thin margins.

One out of three ain't bad. Three out of three was better.
2. The Republicans pick up seven seats in the Senate and twenty in the House.

Light on the House. Remember this was before the Massachusetts Revolution.

3. The United States Supreme Court will bury a key element of the McCain-Feingold bill by holding that the funding of independent expenditures cannot be restricted unless they can be construed as express advocacy lacking any substantial component of issue advocacy - or something along those lines. You can't expect me to read five minds.

Buried deeper than I thought it would be.

4. The Wisconsin Supreme Court will hold (4-3) that Wisconsin's marriage amendment was not unconstitutionally enacted.

Yes but it was unanimous.
5. I fervently pray that I am wrong but there will be a significant terrorist attack on American soil or against an American target.

Wrong, thanks to God.
6. As I predicted last year - and was wrong, Israel will strike at a target in Iran. The Obama administration will take no action but will respond equivocally further isolating the Israelis and accomplishing nothing.

Again, not so and thank God.

7. Newly installed Milwaukee Archbishop Raymond Listecki will undertake some highly visible effort to insist that a prominent Catholic or Catholic organization not act contrary to church teaching. Tom Barrett needs to watch himself.

No and, after discussing this issue with the Archbishop, I was just wrong from the start.

8. The Green Bay Packers will edge Arizona in the first round of the NFC playoffs. They will lose a shoot out to New Orleans in the second round.

A little shorter on that pass to Jennings and I hit on this one.

9. Because I can't get over the Norv Turner factor, I think that Indianapolis beats Philadelphia in the Super Bowl.

Who dat?
10. Alabama beats Texas next week. Wisconsin makes the NCAAs but loses in the first round. Marquette doesn't make it, but goes to the NIT semifinals. UWM goes out in the Horizon League semi-finals. The Brewers rebound to take the National League Central and lose to the Dodgers in the NLCS. Look for breakout years from Rickie Weeks and Mannie Parra. Brett Favre will not retire, but the Packers will win the NFC North next fall. Wisconsin will be second in the Big Ten and go to its first BCS Bowl other than the Rose Bowl.

Alabama did win. Wisconsin and Marquette were better than I thought. The Panthers weren't. Neither with the Brewers and Manny Parra. Wisconsin came through but I didn't think they'd edge out Ohio State.
11. Nothing happens at the Mexico City climate summit.

Nothing did.

12. The individual health care mandate is not held unconsitutional but the Supreme Court grants cert.

It was. It will.
13. No significant cap and trade bill - and maybe no cap and trade bill at all - gets passed.

14. There will be a well funded challenge (in the sense of independent expenditures) to Justice David Prosser. I will predict its failure in my predictions for 2011.

15. This time - this year - Paul Krugman and Ann Coulter will announce their engagement. Love hopes. Always.

Love still hopes.