Yesterday in Ozanne v. Fitzgerald

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

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

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

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

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

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

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

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



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

More on the Supreme Court Race

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

Abuse Victims Shouldn't Be Exploited

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

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

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

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

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

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

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

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

A Primer on Publication of the Collective Bargaining Law

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A Simple Step in Ozanne v. Fitgerald

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

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

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

The Iron Ring of Milwaukee

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

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

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

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

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

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

Shark on Dead Tree

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

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

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

Getting the Prosser Story Straight

There are at least five fairly unassailable observations to be made about the story regarding Justice David Prosser's comments to Chief Justice Shirley Abrahamson.

First, he shouldn't have said what he said. If he has not, he should apologize to the Chief (although we are talking about something that happened over a year ago). Whether she needs to apologize to him is between them. I wasn't there.

On the other hand, for those of you are about to get the vapors, grow up. If you don't think this kind of stuff isn't said from time to time, you need to get out more. David Prosser is hardly the only public official who has lost his religion with an opponent or colleague.

Second, the story raises no concerns about Justice Prosser's qualifications to serve on the Court or his abilities as a Justice. He should not have lost his temper - whether goaded or otherwise - but I guess I will leave it to the reader to ask, whether he or she is the one to cast that stone. If Prosser had a temper problem that was impairing the administration of justice in this state, I hardly think we'd need a leaked e-mail exchange about a decision conference - something that is supposed to be confidential - to let us know. I know what happens and the stories that are told about imperious and cantakerous judges. There are no such stories about David Prosser.

Third, the story does provide some insight into the personal divisions on the Court but not simply because Justice Prosser lost his temper. Members of a collegial court ought not to get involved in each other's election campaigns. It makes working together rather difficult.
Beyond that, what happens at conference is confidential and justices ought to respect that. There is no logical stopping point here. Do we really want each member of the Court running to the press in the guise of correcting public "misperceptions" about their colleagues.

Fourth, Joanne Kloppenburg's claim that her election would somehow ease the division on the court is hard to credit. I am sure that she would like that, but let's look at the facts. If Prosser loses, it will be because partisans turned the race into a referendum on Governor Walker among their base. They will have done so, moreover, with Ms. Kloppenburg's tacit consent and encouragement. Along the way, one Justice turned on another by releasing information that is normally kept within the Court. Unfortunately, the only thing that a Kloppenburg election would do is change the composition of the division.

Fifth, there is no reason to blame David Prosser for division on the court. Discord is not new to the court and it is not necessarily related to ideology. Shortly after Shirley Abrahamson became Chief Justice, four of her colleagues endorsed her opponent in her 1999 race for reelection. One of the four was her ideological cohort, the late Justice William Bablitch. Much of what causes this discord happens outside of public view and those of us on the outside, while certainly right to call and hope for an end to the bickering, should be careful about assigning blame.

Sunshine Songs for Sunday

In a perhaps futile gesture toward the idea that you don't have to hate people who disagree with you (and you know who I'm talking to), let's combine the topic of open meetings (required by what may be called "sunshine" laws) with today's weather (we got no sunshine) for a Sunday musical selection.

This was on one of the first record albums I ever bought.



I actually remember when this was on MTV.



And here is more of Shark Jr. and SuperOpus.




For a bonus, this is my daughter-in-law's father's band, The Lovin' Kind, doing Sunshine Day at Harvey's in Mequon.

The Sumi Decision: A Closer Look

Having taken a closer look at the text of Judge Sumi's decision in Ozanne v. Fitzgerald, I am quite frankly astonished. The court seems to have managed to enjoin publication of the statutory changes in the budget repair bill without addressing any of the difficult issues that the case presents.

First, there is an issue as to whether the case is even ripe for decision. In Goodland v. Zimmerman, 243 Wis. 459, 10 N.W.2d 180 (1943), the Supreme Court held that judges may not enjoin the publication of a law on the basis that it is or might be unconstitutional. A bill, in the Court's view, is not enacted until it is published such that publication is part of the legislative process with which courts may not interfere. Unless the Court wants to abandon that precedent, I think that it clearly requires that the restraining order be vacated and the case be remanded with instructions to dismiss.

Of course, the case could be refiled after publication by someone with standing to address its constitutionality. But lay readers should not think that renders this objection meaningless. It implicates concerns for separation of powers, ripeness and standing and courts take these things very seriously and for very good reasons.

Second, the principal argument of the state - as I understand it - is that the open meetings law itself defers to conflicting legislative rules. I laid it out here. Sec. 19.97(2) says that "no provision of the Open Meetings Law which conflicts with a rule of the Senate or Assembly or joint rule of the legislature shall apply to a meeting conducted in compliance with such rule."

Judge Sumi acknowledges this but then asserts that "neither party has cited any rule that would have overridden the clear provisions of the notice requirement in sec. 19.84." But I am sure that the state did cite Senate Rule 93(2) which provides that, when the Senate is in special session (and it was), "notice of a committee meeting is not required other than posting on the legislative bulletin board, and a bulletin of committee hearings may not be published." Assembly Rule 93(3) says the same thing.

Well these sure look like rules that override the clear provisions of the notice requirements in sec. 19.84. Why doesn't Judge Sumi think so? We don't know because she didn't say.

There may be ways to reach that conclusion. The conference committee in question was a joint committee and there are separate joint rules. Maybe these mean that the Senate and Assembly rules do not apply. These joint rules do not include a counterpart to Senate Rule 93(2) or Assembly Rule 93(3). If Judge Sumi concluded that only the joint rules are applicable, then maybe the plaintiff is right after all.

But even if she did so conclude (and we don't know whether or why that is so), she wouldn't be home free. These joint rules do include a few rules that might be interpreted to incorporate those rules into the activities of joint committees. For example, Joint Rule 84(2) says that standing and special committees of one or bothy houses may:

(2) Public notice. In compliance with the appropriate senate and assembly rules, hold public hearings and executive sessions and conduct any other committee business on the proposals that have been referred to the committee.

That might be read to incorporate the notice provisions of Senate Rule 93(2) and Assembly Rule 93(3). Joint Rule 27 requires notice of committee meetings in accordance with Joint Rule 75 "if time permits" suggesting yet another standard (and a fairly lenient one) for evaluating the notice provided here. (Rule 75 itself seems to apply to the weekly schedule of meetings.) Joint Rule 10 says that each house will determine its own rules for its proceedings. Does this mean that we look to the notice provisions of each house for the meeting of a conference committee?

Maybe Judge Sumi decided that none of this cuts in favor of the legislature but there is an overlaying problem if she did - one identified Bill Tyroler in a comment to an earlier post. Shouldn't a judge defer to the legislature in interpretation of its own rules? The legislature thinks that it followed its own rules. Leg Counsel apparently agrees. Isn't it proper to defer to that determination? If not, why not?

Even assuming that the open meetings law applies, did the legislature comply? Judge Sumi says that the state gave no reason for not providing twenty four hour notice. Is that right?

And even if it is, why does the balance of equities favor invalidation of the law. Judge Sumi's rationale - that the people "own" the government and nothing can happen in secret - can't be right. That would require invalidation of an official action every time the open meetings law is violated - something that the open meetings law itself does not contemplate. It requires a further balancing of interests which require the consideration of things other than an open meetings violation. She purports to do that but her analsis ultimately reduces to the open meetings violation. Given the terms of the open meetings law itself, that can't be enough.

At first blush, this doesn't seem like a strong case for invalidation. Notice was provided. The meeting - as far as I know - was open to the public. The Democrats were there (Barca) - or if they weren't it was because they were unlawfully boycotting the legislature. My guess is that the public was as well. The measure in question has been the subject of extensive public debate and final action on it was taken with the Capitol crawling with protesters.

If Judge Sumi thinks otherwise, it requires a better explanation that this was things shouldn't happen "in secret."

Of course, this was not a decision on the merits but only the granting of a TRO. Nevertheless, the decision reads as if a violation is clear. It's not.

Federal Bargaining Rights

Blogger Mike Plaisted says that I deleted a comment that he left here asking me why I "lied" about the bargaining rights of federal employees.

I have not deleted a comment on this blog for well over a year. The last time I can recall doing it was when the story broke about the relationship between Ed Flynn and Jessica McBride and somebody made a sexist joke. I did not delete any comment from Mike Plaisted. I saw no comment from Mike Plaisted. I saw no comment asking about federal employee's collective bargaining rights. Mike can comment here whenever he wants.

UPDATE: In addition to not moderating, I also do not review the comments that Blogger holds as spam. In fact, until about five minutes ago, I was unaware that I could do that. I have now reviewed those and Mike's comment was held as spam. In other words, it was not deleted. It never appeared in the first place. I have marked it as "not spam." It now appears.

My goodness, if it were my practice to delete dissenting comments or comments that say I am wrong or that try to insult me, I am obviously doing a poor job.

On the substance, Mike is upset that I and others suggest that other states and the federal government restrict collective bargaining rights of public employess. But they do. Mike's point is that federal employees can bargain over things other than wages and benefits. Fine. I never said otherwise. My point is simply that it is not unusual for public employees to have their collective bargaining restricted in various ways and that folks who want to claim that the Walker bill is an existential threat to the republic might want to address that. Walker's bill would not permit bargaining over working conditions. Federal law generally doesn't permit bargaining over wages and benefits. The point is that, either way, there are restrictions on collective bargaining. (And, of course, some states completely prohibit collective bargaining by public employees.)

Well, Mike seems to claim, you shouldn't say that Wisconsin public employees would be left with collective bargaining rights greater than or equal to employees in half the states and most federal employees. Why not? It seems to me that, for most people, wages and benefits are the most important conditions of employment. But however that may be, the larger point - that there is no universal and fundamental right of public employees to collectively bargain - is correct.

Sumi decision leaves a long road ahead.

I would advise those who are tempted to break out the champagne over Judge Sumi's decision enjoining publication of the budget repair bill to put it back in the bucket. There are problems.

First, it is not clear that she had the authority to enjoin publication of a bill. There is some Supreme Court precedent holding that a court may not enjoin publication of a bill because of concerns regarding its constitutionality. The idea is that a law is not enacted until it is published and its constitutionality cannot be determined until it's enactment is complete and someone has been injured by its threatened or actual publication.

Second, while I don't know how Judge Sumi concluded otherwise, there is, as I explained here, serious doubt as to whether the duration of notice provisions of the open meeting law applied here. It seems to me that concluding that it did requires construing a legislative rule in a way that seems to - in conjunction with the open meetings law itself - suggest otherwise.

Third, if it applied, it may well have been complied with. If the legislature can show that twenty four notice was impractical, it may be that the two hour minimum period was complied with or that the notice was so close to two hours so as to raise any violation de minimis.

Fourth, even if the law applied and was not complied with, invalidation of the action taken is not mandatory. It is far from clear that the balance tips in favor of invalidation given the extraordinary circumstances of this bill.

Finally, in assessing all of this, it should be noted that this was not a decision on the merits but the granting of a TRO. It was, in effect, Judge Sumi ordering everything to stop until she could more fully consider the matter.

Wisconsin Democracy Campaign's "Phony Issue Post"

Wisconsin Democracy Campaign is a nonprofit corporation that promotes greater regulation of campaign finance and electioneering. It has been known, from time to all of the time, to rail against what it calls "phony issue ads" - communications made during an election that discuss issues in a way that either conveys criticism or praise for one of the candidates. A majority on the current United States Supreme Court isn't enamored of the concept, but WCD seems to be sticking to its guns. The reason: It says that regulation of campaign contributions can be evaded if unlimited amounts of money can be spent on issue ads that tend to promote or attack candidates.

So imagine my surprise when over at WCD's Big Money Blog, the group's executive director has put up not one - but two posts - criticizing Justice Prosser as a partisan and promoting the idea that David Prosser is intrinsically tied to Scott Walker. Indeed one chides Prosser for his "Scott problem." The web site, as far as I know, is not paid for by the Kloppenburg campaign or any other form of regulated campaign contributions.

Fortunately for Mr. McCabe, but no thanks to WCD, it remains perfectly legal for organizations to exercise their free speech and associational rights during an election. Hypocrisy is a human failing, but it's not illegal.

Still there may be a problem. WCD solicits tax deductible donations on its website as a 501(c)(3) organizations. 501(c)(3)s are, of course, prohibited from supporting or opposing candidates for public office.

Now, WCD may have an affiliated 501(c)(4) corporation and they are permitted to engage in some political activity. But there are limits on the tax deductibility of moneys used for that purpose. I'd be reluctant to use a website that solicits contributions for the a 501(c)(3) as a vehicle for the political activities of a c(4), but I'll leave that to tax experts.

Mr. McCabe may argue that his issue ad is not phony. How he distinguishes his high minded discussion of issues from everyone else's low and "dishonest" promotion of candidates. I can't but then again I believe in free speech. For everyone.

Being Garvey Means Never Having to Say You're Sorry

We are all familar with the mantra "by any means necessary." On the budget repair bill that has meant

1)elected public officials flouting their plain constitutional duty to attend sessions of the legislature,

2)engaging in illegal work stoppages,

3)obtaining fraudulent doctors' excuses to avoid accepting responsiblity for participating in those unlawful actions,

4)attempting to intimidate public officials on the "wrong" side of the issue,

5)trying to physically prevent the legislature from acting, and

6)engaging in secondary boycotts of businesses who have owners or employees who disagree with one's position (or even those who wish to remain uninvolved.)

There's a lot to be proud of there. We might add the convenience of ignoring the truth. Fighting Ed Garvey falsely stated that WMC had given six million dollars to Justice Prosser's campaign and "bought" him. I asked that the statement be substantiated. It has not and it can't be. Prosser ran unopposed in 2001. No one spent much of anything on his campaign.

It is certainly possible that independents may participate in the Supreme Court race over the next three weeks. But it hasn't happened yet and, unless Mr. Garvey is clairvoyant, he cannot possibly know how much it will be or who it will come from.

I have informed Garvey of his error. So has leftie blogger Tom Foley. On this blog, if I get something wrong, I fix it, Most responsible participants in public discourse do the same

And then there's Ed Garvey.

Sunday Songs for Everyone

While we wait for the brackets to be announced, why not post some Sunday music.

First, something we all should agree on. The young lads who make up SuperOpus are quite good. Here are some samples of their recent show at the BBC. (Ok, ok, the lead singer is Shark, Jr.)



I was at this show, but am not the one who took or posted these clips.



For those on the other side of politics (which is not life), I offer my favorite Irish commie band.



But for those with a different view of the Best Western 14:

Whoa Nelly! What's He Talking About?

I am not going to accuse Ed Garvey of lying. My impression of him - limited as it is - is that he is such a rabid ideologue that he actually believes whatever verbal gesticulation supports his position. But sometimes you just have to ask. Here is what he recently wrote about Justice David Prosser:

You know Prosser as the "WMC Justice." Wisconsin Manufacturers & Commerce put about $6 million into his campaign. They spent like drunken sailors on leave. But they were not drunk; they knew what they were purchasing and so do you.

I have no idea what he's talking about. Ten years ago, Justice Prosser ran unopposed. I suspect that no one "poured" any nontrivial amount of money into a walkover. This year he is opposed, but it seems highly unlikely that anyone - let alone WMC - has spent anywhere near six million dollars on the race. Perhaps someone will (although there is not a lot of time left to do it), but it sure doesn't seem to have happened yet.

I have asked Garvey to substantiate his claim. If he can, I'll link to it here.

Tracking the Budget Repair Bill

I've been down with a minor back injury for the past two days although I did crawl out of bed to talk to Channel 12 about the events of the last two days.

There is, it seems to me, a great irony about all of this. Democrats have referred to Republicans as "thugs" and "political criminals" when, in fact, the clear violation of a legal duty was the refusal of the fourteen Senate Democrats to comply with their body's own rules and the call that they return - a call that is plainly authorized by our state's constitution. If there are any "thugs" in the picture, the likely candidates are protesters who have done their best to disrupt the functioning of the legislature.

But what about the passage of a stripped down version of the bill? There are two areas of potential concern. One procedural and the other substantive. Let's start with process? Did the legislature violate the open meetings law. Sec. 19.84(3) of the state statutes requires 24 hours notice of the meeting of a governmental body "unless for good cause such notice is impossible or impractical, in which case shorter notice may be given, but in no case may the notice be provided less than 2 hours in advance of the meeting."

If the statute is applicable, the question becomes what good cause justified less than 24 hours notice? Assuming that good cause can be shown, was two hours notice given. There are some claims that the notice given around 4:09 and that the meeting began at 6:04. If that's so (it seems unclear when notice was posted) and if the statute applies, what is the impact of being five minutes late? Would a court really invalidate legislation for that reason? Apart from that, how did Senate Republicans manage to even create an issue. Couldn't the have scheduled the meeting for, say, 6:15? The matter seems to have been slopply handled but stating the counterfactual itself demonstrates the de minimis nature of any violation (assuming good cause to depart from twenty four notice can be shown.)

But it grows more complicated because the Republicans claim that sec. 19.84(3) does not apply at all. Sec. 19.87(3) of the statutes says that "[n]o provision of this subchapter [the open meeting law] which conflicts with a rule of the senate or assembly or joint rule of the legislature shall apply to a meeting conducted in compliance with such rule." Both the Senate and Assembly rules provide that, when in special session, the only notice required is posting on the legislative bulletin board without specification of a minimum notice period.

But we're still not done. Was the joint committee meeting itself proper? Joint Rule 3 of the legislature provides for such a meeting in the event that the Senate and Assembly disagree. The Democrats say that means that the Senate has to have voted on the bill. The Republicans say that it applies only when there is, in fact, a disagreement. No vote is required.

In any event, I can't see any of this resulting in invalidation since it requires an interpretation of the legislature's own rules. On close questions, in particular, I don't see a court upsetting the legislature's determination of what they require. This is particularly so in the event of an open meetings violation which, by law, renders an action not void but voidable. Sec. 19.97(3) says that a court should void an affectined action only it "the public interest in the enforcement of this subchapter outweighs any public interest which there may be in sustaining the validity of the action taken." I don't see much chance of that.

On the substance, the question is whether the legislature really stripped the bill of its fiscal provisions. A fiscal bill is constitutionally defined as one that "imposes, continues or renews a tax, or creates a debt or charge, or makes, continues or renews an appropriation of public or trust money, or releases, discharges or commutes a claim or demand of the state ...." I don't think that limiting the authority of the state and local units of government to collectively bargain comes within that definition. But there is more than that in the bill that was passed. Much of it has to do with moving money around, but it is not clear that any of it is "fiscal" in this specialized use of the term. But I can't claim to have fully analyzed it.

Apart from the law, what strikes me as odd is the claim that the existence of these issues amounts to some kind of assault on democracy. This bill has been extensively debated and there is a level of public awareness concerning its terms that is unique. You may think it a bad bill but it is a product of democracy passed in the face of lawless behavior by the absconding Senators and, to a lesser extent, the childish antics of the protesters. If you're looking for an assault on the rule of law, look elsewhere.

Shame Is Right

Yesterday I blogged about the way in which a prominent Madison attorney wants to argue that a constitutional provison designed to protect the largislature's ability to function could, in fact, be used to prevent the legislature from functioning.

Today, we have claims that acting to prevent public disription of our democratically elected legislature is an assault on democracy.

I understand how public employees would want to keep collective bargaining laws as they are now. But this law does not "kill the middle class" or take away fundamental human rigts. There are all sorts of states the have similar (or more substantial) restrictions on collective bargaining. Most federal employees are sunject to similar restrictions and the overwhelming majority of private sector employees do not collectively bargain.

So this is the battlefield on which our constitutional processes should be shredded/ There is indeed shame that should be felt. But it is the protesters and their handlers; it is the lawless senators who should be ashamed of themselves.

Sure they can be apprehended and compelled to return

In the Losing Touch With Reality Department:

Blogging lawyer Mike Plaisted was impressed by a memo prepared by Lester Pines essentially concluding that legislators are exempt from arrest and thus the Senate has no way to exercise its constitutional authority to compel the attendance of missing members. Noting that I have consulted with lawyers who brought a petition for a writ of mandamus (indeed I was on the pleadings) and who represented the Senate in connection with the decision to hold the missing 14 in contempt, Plaisted pronounces that Lester "kicked my legal ass." Also, I'm a nut and an arrogant bastard. (Civility is not Mike's thing.}

I do lock heads with Lester from time to time and I expect I'll continue to do so. Sometimes kick my butt. Other times I'll kick his. He is a worthy opponent and I have invited him to my Supreme Court conference the last two years. He can expect an invitation this year as well.

But, in this instance, Lester (and Plaisted) are wrong - spectacularly so. There is no doubt that Senators have a duty to attend. The constitution clearly gives each house of the legislator the authority to compel attendance. Article IV, sec. 7“compel the attendance of absent members in such manner and under such penalties as each house may provide.” In the case, the Senate rules state that, when a quorum is lacking, missing members are to be identified to the Sergeant at arms who is authorized to bring them in. That resistance to a call to return is punishable by contempt is made clear in Art. IV, sec. 8.

Now there is a provision in the Constitution that exempts legislators from arrest or civil process during and immediately before or after a legislative session - subject to certain exceptions. But to apply it here is a perversion of its purpose. Historically, the immunity of legislators from arrest has been a protection against interference by outsiders with the legislative function. Art. IV, sec. 15 is designed to protect legislators in the performance of their legislative duties and prevent the executive, for example, from prohibiting the attendance of legislators through arrest or civil process. They are not intended to hamstring the legislature from the enforcement of its rules and taking those steps necessary to enable it to function. There is, then, no conflict among Art. IV, §§ 7, 8 and 15. They are complementary provisions in service of the same end. Constitutional language is to be harmonized whenever possible and should not be contrued to render one a dead letter.

Even were this not the case, general rules of constitutional construction require that the specific (enforcement of the duty to attend) control the general (immunity from arrest or civil process). Lester also relies on sec. 13.26 of the statutes which specifies when the legislature can punish a contemnor by imprisonment for disregard of its privileges or those of its members. Not applicable here. First, the legislature is not proposing to punish the missing Senator by imprisonment. Second, it is attempting to enforce its privileges. Indeed, it easier to read 13.26 as authorizing imprisonment of the missing 14 for failure to attend.

There are instances in which legislators have been apprehended and brought into a legislative chamber. For example, Sen. Bob Packwood was carried feet first into the Senate - notwithstanding the fact that there are parallel provisions in the United States Constitution regarding immunity from arrest.

And, of course, the Democrats on the run know this. It is why they are hiding. It is why they have left the state. If they really thought they were immune from apprehension, there would have been no need to go to the mattresses.

Plaisted's description of our Oconto County law suit is inaccurate. We didn't file a writ, we requested one and the case was not dismissed. What the judge did do was indicate that it was the prerogative of the Senate to enforce or not enforce its rules. That's not a surprise. I suggested as much on Fox News the week before.

I shouldn't be surprised at Mike. He closes his post with a bizarre story about this being somewhat akin to the freeing of Joshua Glover because, of course, restricting collective bargaining rights that don't exist for federal employees and in a number of states is like slavery.

I would think that Lester and Mike and others should think twice before defending this stunt. I am sure that, at some point in the future, the Democrats will be back in power. They may want to raise taxes and increase spending. Do they really want to establish the right of 14 Republican Senators to prevent that by running away?

Because this "by any means necessary" stuff cuts both ways.

Senate Orders Democrats to Return

In a brief memorandum opinion yesterday, Judge found that the respondent State Senator had violated his plain duty to attend a Senate session. He also held - and I was not surprised - that the Senate had the authority to enforce its rule of compulsory attendance.

Today the Senate decided to do just that. It has ordered the absconding fourteen to return by fourteen by 4 pm today. If they do not do so, they will be in contempt of the Senate and the Sergeant at Arms will be ordered to bring them in - with the help of law enforcement if necessary.

By way of full disclosure, I consulted with lawyers advising the Senate - again on a pro bono basis. The authority of the Senate to do this is clear. Article VII, sec. 7 gives each house of the legislature the power to compel the attendance of absent members to obtain a quorum. The Senate's own rules require attendance and provide for the Sergeant at arms to be directed to compel bring them in. Art. VIII, sec. 8 of the Constitution says that Article IV, § 8 provides that “each house may determine the rules of its own proceedings, [and] punish for contempt and disorderly behavior.”

There are relatively few precedents for this because relatively few legislators have behaved so irresponsibly for such a lengthy period of time. (In fact, the scofflaws - and that's what they are - have arguably gone beyond any prior example of this anywhere.) But there are examples of legislators being arrested and compelled to attend to obtain a forum. It has been done by the United States Senate, the Alaska Senate and the New Hampshire house.

Absent legislators are not heroes

One of the sillier claims made over the contretemps in Madison - and its a robust competition - was made by George Lakoff. We should, he writes, call the fugitive Senators "the Lincoln legislators" and claims that are actually fulfilling our state's constitutional design. Quorum requirements, he asserts, were designed for just this purpose. The whole point, he says, is to allow a minority to paralyze a legislative body when it is about to do some thing they think his bad. This frustration of the will of a democratically elected body is an "essential part of democracy."

Really. I did not make that up. I am just not that imaginative.

Lakoff invokes a story claiming that Abraham Lincoln, as an Illinois legislator, jumped out of a window to destroy a quorum. Perhaps he did. But that doesn't make it right.

As a matter of Wisconsin's constitutional design, the argument that our framers intended quorum requirements to be used as a device to prevent a majority from acting is not only flat out wrong, it is frivolous. It requires one to ignore the language of the very constitutional provision creating the general requirement of a quorum. It states that, if a quorum is not present, those lesser numbers of legislators who are present to compel the attendance of those who are absent. If the framers of the Wisconsin Constitution had attended quorum requirements to be a device for frustrating the will of a legislative majority, they would not have given the body the power to compel attendance.

Rather than permitting a rump of a legislative body to prevent the enactment of law by the body as a whole by deliberating staying away, they were intended to prevent a rump from enacting law without permitting the participation of those who are absent. Lincoln may have been a great man, but not everything a great man does is great.

Lakoff is, of course, known for advancing a well known trope of progressives. The idea is that Democrats lose elections because Republicans are so much better at framing the issues in ways that are perverse and false and confusing. Whatever the merits of that claim, he has certainly shown how it's done.*

* I am one of the lawyers for the plaintiff in Barthel v. Holperin, litigation filed today in the Circuit Court for Oconto County seeking to compel one of the missing legislators to return. Any work I have done or will do in the case is being done pro bono.

Is Langley Right?

So is Governor Walker's budget repair bill unconstitutional? Milwaukee City Attorney Grant Langley says so. Is he right? I have serious doubts. Here are some preliminary observations.

At the outset, we should note that Langley claims only that that a particular provision prohibiting cities of the first class (a category that contains only Milwaukee) from paying the employee's portion of its retirement plan (in effect, prohibiting an automatic enhancement of wages paid in the form of a pension contribution). This is, of course, the concession that we are now told the public employee unions are willing to make. Langley says, in effect, that each employee individually must consent to this. (He would probably also say that the employees unions can consent for them, but if his opinion is generally correct, it is not clear at all that this is so.)

His opinion says nothing about the restriction in collective bargaining rights although his argument based on home rule might apply to it as well.

Having said that, the opinion's conclusions seem wrong. First, it claims that the City has home rule rights guaranteed by the state's constitution. It certainly has those rights but the law permits the state to interfere with a local unit of government's affairs when they pertain to a matter of state wide concern. The opinion simply assumes this issue away, largely relying on legislative pronouncements from the first half of the twentieth century.

What the opinion ignores - and should not have - is the Governor's stated rationale for the proposed limitations on municipal contributions. Far more than in the 1930s and 1940s, Milwaukee is a supplicant of the state. It lives on money from Madison. If that is the case, then how it spends its money arguably becomes a matter of statewide concern.

More startling is the opinion's conclusion that pension contributions (as opposed to vested pension benefits) are frozen forever at the time an employee becomes part of the city's retirement system. It seems to say that, if an employee was getting 5.5% of his pay contributed toward a pension at the time he joined the system, that he is entitled to get it until he leaves city employment.

If that's the case, then the taxpayers of Milwaukee ought to be outraged that their elected officials could ever have let such a thing happen. If that's the case, then the point that I and others have been making about the ways in which public employee unions capture their governmental employers ought to be considered an immutable law of nature.

But I'm not so sure that is the case. The authority that Langley relies upon seems just as easily - and perhaps more readily understood - to apply to an employee's vested benefits, i.e., what they have already earned in terms of pension benefits, as opposed to creating an immutable right to future contributions that can never be altered.

What is evident is that City taxpayers should hope - fervently - that Langley is wrong. And city employees should not be overly encouraged. If the state cuts municipal aid, it remains the case that - even if the city must continue to contribute 5% of salary to the pension of each employee hired before this year - there is no right (at least after the expiration of existing collective bargaining agreements) to any particular salary level. If the city can no longer afford the 5%, it can simply reduce or freeze wages. If collective bargaining makes this impossible, there is an even more sobering prospect for city employees.

There is no constitutional right to a job.