Friday, March 29, 2013

Recusal and Elections

Over at Right Wisconsin, I have a piece up on the issue of recusal in the state Supreme Court race. Challenger Ed Fallone is trying to make an issue of incumbent Pat Roggensack's support of a rule that a legal campaign contribution or independent expenditure by a party to or attorney in the case does not require recusal.

Of course, an individual judge or justice might decide that, in a particular circumstance, a contribution or expenditure might warrant recusal. The rule that Roggensack supported only makes clear that recusal is not automatically required.

(Roggensack, along with a majority of the court, has also taken the position that the recusal decision is to be left to the individual justice - a practice that is also followed by the United States Supreme Court. But that's a different issue.)

Fallone appears to have said different things about recusal at different times, but has apparently settled on the view that there ought to be some sort of rule requiring automatic recusal - at least for contributions of expenditures over a certain level.

But would he follow that rule himself? He has enjoyed support - in a variety of forms - from persons with an interest in overturning Act 10. Would he recuse himself in a case addressing the constitutionality of that law?

I suspect that answer would be "no." I imagine he would say that, under the circumstances. he believes that he could address the issue fairly and impartially. He would say, that in the context of the case and the circumstances surrounding support of his campaign, he believes that recusal is unwarranted.

In other words, he would avail himself of the discretion that the rule supported by Roggensack affords each justice. If I am wrong, then he should be willing to say so. If he believes that contributions are naturally corrupting or automatically give rise to the appearance of bias, then shouldn't recuse himself whether or not there is a rule requiring it or without regard to what other justices might do?
Of course, he won't and, in a sense,  I don't blame him. An automatic recusal rule would make it impossible for people like Ed Fallone to ever challenge an incumbent judge or for voters to hold elected judges accountable. If campaign contributions would render a judge unable to sit on cases that are important to the contributor, then those contributions would not be forthcoming.

While it is easy to regard this as a good thing in the case of a private party interested in the outcome of a private dispute, that is not the typical circumstance in supreme court elections. Contributions tend to come from groups and organizations interested in electing judges with a particular philosophy. To adopt a rule that would require recusal in any case in which these groups are interested would shut down the process. (A rule that was limited to contributions that come from private parties who are litigants in the case would be largely meaningless. None of our recent recusal controversies involve such a dispute and the amount that a party can contribute will be immaterial in a contested statewide race.)
Some people would count that a good thing - being relatively immune from challenge would certainly foster judicial independence. But, in Wisconsin, where judges have always been elected, we have struck a different balance, trusting in the voters to evaluate judicial candidates and incumbents.If that balance is the correct one, then rules which make elections impossible or futile should be regarded as suspect.

If you are interested in this topic, I wrote about it at length here.

Cross posted at Purple Wisconsin

Thursday, March 28, 2013

Snitching and Recusal: A very bad analogy.

My fellow Purple Wisconsin blogger Alex Runner is not, as far as I can tell, a lawyer. He seems like a bright guy and I enjoy his writing. But in his post today about Justice Pat Roggensack and her response to the complaint against Justice David Prosser, his lack of a legal education shows. With all due respect, he completely misunderstands the issues.

Alex compares the recusal of certain Justices to the "no snitching" culture which residents of our central cities struggle against. "They're not snitching," he writes. (Italics in the original.) We will, he laments, never know what really happened.

Wrong. Utterly long.

They all "snitched."

They all made statements to law enforcement officials. If Alex is interested, he can read them on line. Properly stated, Alex' problem is not that they refused to "snitch" but that he apparently doesn't believe - or like - what a majority of them had to say. Based on those statements, law enforcement officials declined to file charges. So "we know," based on that decision, that the responsible law enforcement agencies did not think that was possible to prove that anyone assaulted anyone else.

The Judicial Commission did file a disciplinary complaint with the Court. Because those justices who were witnesses to the event have recused themselves, the Court can't act on that complaint. (The Consitution requires four justices to constitute a quorum.) Alex goes on to say that the Court should have referred the matter to the Court of Appeals which he seems to think could have addressed the issue. He chides the recusing justices for not "allowing an outside, objective body to examine what transpired." To support his position, he cites another non-lawyer, Milwaukee Magazine editor Bruce Murphy.

Here are the main problems with Alex's critique.

First, if a majority of the Court recuses itself, then it cannot act to refer the matter to the Court of Appeals - whether one regards such a referral as pro forma or not. While some argue that a referring order is not necessary, the presiding judge of the Court of Appeals does not think so and it is he who has refused to appoint a panel to hear the case.

Second, even if a panel - Alex's "outside, objective body" - was formed, it could not decide the case. Under current law, only the Supreme Court itself can impose judicial discipline. If a quorum cannot sit on the case, then it can't be decided. One can argue that the law should be otherwise, but it's not. I'm sure that Alex, who so admirably promotes lawful behavior in his neighborhood, would agree that we cannot ignore the law now because it has become inconvenient.

Third, comparing the decision to recuse to a refusal to "snitch" trivializes the important - and difficult - ethical issues which each justice had to evaluate in deciding whether or not to recuse. The general rule is that a judge cannot sit on a case in which he or she is a witness. That prohibition is expressed both in statute and in the Code of Judicial Conduct.

One does not have to be a lawyer to understand why this is so. It is impossible to impartially evaluate your own testimony. The witness statements given by the Justices (i.e., what they said when they "snitched" to local law enforcement) reflect differing perceptions of the events. Deciding the case will require determining which of these differing perceptions most accurately captures what happened. It is humanly impossible to put aside what you believe that you saw and impartially evaluate your own version of events against the statements of others.

Nevertheless, some argue that the normal rule requiring recusal should be put aside pursuant to something called the "Doctrine of Necessity." This is the concept - rarely employed - that normal recusal rules can be disregarded if it is "necessary" to do so and there are sufficient assurances that normal precepts of due process and impartiality can be preserved. (My own analysis of the matter can be found here, here and here, including my suggestion as to how the Judicial Commission could more fruitfully address the matter.)

In a written opinion, Justice Roggensack considered the Doctrine of Necessity and explained why she believed that it could not be applied in this case. Perhaps Alex has carefully reviewed her opinion, read the cases that she cites and come to the conclusion that he disagrees with her legal analysis.

Perhaps he has, but a trite and facile comparison of her careful and thorough legal reasoning to "no snitchin'" does not suggest so.

I suppose one can argue that Justice Roggensack and her colleagues should have found a way around the normal rule of recusal and heard the case. Had they done so - given the content of the statements each of them gave to the police - it is almost certain that Justice Prosser would have been exonerated. What they say they saw simply does not warrant discipline.

But it would be hard to make an argument that the way in which they have addressed a difficult and unusual legal problem is much of a reason to unseat an incumbent Justice. "Yes to the Doctrine of Necessity" would not be much of a campaign slogan.

Alex concludes by saying that those who value "value ethics, transparency, rule of law, justice" ought to vote for Ed Fallone implying that Justice Roggensack does not believe in these things.

I read Wisconsin supreme court decisions for a living. I can assure Alex Runner that Pat Roggensack is not the monster he seems to think she is. She is a smart and conscientious jurist - as are her colleagues. We can disagree about the law without attacking the good faith of those we disagree with.

It could be that there are people who believe that there are "process" reasons to unseat Justice Roggensack. My own sense is that it takes an almost wilful misunderstanding of the issues to do so. I think that most folks who are voting for Ed Fallone are doing so because they want to move the Court to the left.

That is certainly their right, but a little candor about it - and a bit less character assassination - would be refreshing.

Cross posted at Purple Wisconsin.

Wednesday, March 27, 2013

Not so fast on new contracts

The MPS teachers' union wants to negotiate a new contract. They think that contract need not be compliant with Act 10 because of a Dane County circuit court decision holding that the law is unconstitutional. As I have written before, that decision does not create a window of opportunity to violate Act 10. Whether or not the union will ultimately be able to avoid Act 10 will depend on the decision of a higher court - almost certainly the Wisconsin Supreme Court.

If that court concludes that the Dane County circuit court was wrong - a conclusion that is highly likely - then any new contract that violates Act 10 will be unlawful and presumably void.

Moreover, the fact that a single circuit court judge in Madison thinks the Act is unconstitutional will have exactly no impact on the deliberation of higher courts. Lower court decisions are entitled to deference when they involve factual findings or the exercise of discretion. The decision holding Act 10 to be unconstitutional involved neither and is subjected, as lawyers like to say, to de novo

Negotiating a new contract would be even more problematic than that. The attorney for the plaintiffs in the Dane County case seems to think that a municipality that does not agree to negotiate terms that are forbidden by Act 10 would be engaged in an unfair labor practice. In his view, the Wisconsin Employment Relations Commission - to whom such charges are initially directed - would be bound by the circuit court decision because its members were defendants in the case.

But there are at least two problems with his argument. First, it us unclear that WERC, in its capacity as a tribunal, can be bound by a declaratory judgment in adjudicating the rights of a party who is not itself bound by that judgment.  For example, if the Mequon-Thiensville School District is charged with an unfair labor practice for complying with Act 10, it was not a party to the case finding it to be unconstitutional. The question is one that only a civil procedure professor (and I've been one of those) could love.

But there is a more fundamental problem. WERC's decisions are not final. They may be reviewed by a circuit court. That court will not be bound by the Dane County decision which - and this is black letter law - has no precedential value. A reviewing court need not follow it.

The future of Act 10 will be decided by the Wisconsin Supreme Court. If, as I think is almost certain to happen, the law is upheld then entering into agreements that are not permitted by it will create one hot mess. It will invite s a lawsuit in the short run and, in all likelihood, a tangled set of illegal obligations and payments to undo in the longer run.
Cross posted at Purple Wisconsin.

Friday, March 22, 2013

A question about voter identification

In light of yesterday's filing of voting fraud charges, I have the following question for opponents of voter ID.
Assume that the current law was amended to provide free copies of birth certificates. Assume that it also authorized a series of "registration weekends" in which DMV offices would be open for those who cannot make it during normal hours. Perhaps we could even set up a couple extra "outreach" stations during these weekends at which a DMV employee would be availbale to issue IDs. Finally, if someone was still unable to get an id card, they could still vote if they signed an affidavit - under penalty of perjury - explaining their inability to vote. Their photo would be taken at the time they signed the affidavit and filing a false affidavit would be a felony.
Would you still oppose voter identification laws?

Cross posted at Purple Wisconsin.

Thursday, March 14, 2013

A campaign about nothing

I have a column on the state Supreme Court race up at National Review Online.

One of the interesting things about this race is the "stealth" nature of the challenge and the minimalist nature of the stated case against incumbent Justice Pat Roggensack. It would be one thing for the challenger Ed Fallone (who is certainly a smart and capable law professor) to argue, for example, that he wishes to take the Court in a different substantive direction. That appeal would not persuade me, but it would at least provide voters with a coherent choice.

Instead, the argument seems to be that the Court is dysfunctional (a view that is overstated) and that replacing one of its seven members would somehow change that.

If this seems like weak tea, it is because it is. The case against Roggensack as the source of - or a major contributor to -  the Court's problems seems to be that she 1) doesn't think that the Court's problems are currently impeding its work (there is little or no evidence that they are), 2) shared the impression of at least two other witnesses that the altercation between Justices Bradley and Prosser wasn't quite as Justice Bradley describes it, 3) did not believe that, as a witness to the latter incident, she should sit as a judge in a case arising from it, and 4) believes, with a majority of the Court and the United States Supreme Court, that recusal decisions should be reserved -at least in the great run of cases - to individual justices and not to the Court as a whole.

In connection with the latter point, she believes - again with at least a majority of the United States Supreme Court - that campaign contributions alone do not create a duty to recuse, although she has never said that contributions may not, under the proper circumstances, form a basis for recusal.

One can disagree with these positions or quibble on the details. One could, for example, say that she should have disregarded the normal rule against being a witness and a judge in the same case because it was "necessary" to do so. One could argue that there ought to be a per se rule of recusal in the event of legal campaign  contributions over a certain level - even if that would make it virtually impossible to raise money and do the job that a justice has been elected to do. One might even say that Roggensack should have seen what Bradley - and not Justices Ziegler, Gableman and, to a lesser extent, Chief Justice Abrahamson - saw during those few seconds in June of 2011. (Although how any of us who were not there are supposed to be able to make that judgement is beyond me.)

But, however you put it, these seem to be the chosen campaign themes. And what it boils down to is an appeal - not for peace between the Court's factions - but to enhance the numbers of one at the expense of the other. Candidate Fallone comes not to bring peace, but to bring a sword.

And it is hard to see how that would add up to a case for defeating an incumbent justice. As I wrote on NRO, the only two incumbents who had ever been elected to the Court to subsequently lose are Justice Samuel Crawford in 1855 and Chief Justice George Currie in 1966. Crawford voted to uphold the Fugitive Slave Act and Currie voted to remove the last legal obstacle to the Milwaukee Braves to move to Atlanta.

As they say on Sesame Street, one of these things is not like the other ones.

Cross posted at Purple Wisconsin.

Monday, March 04, 2013

John Doe RIP

My initial reaction to the termination of the Joe Doe investigation can be found over at Right Wisconsin. (Sorry, it's behind a pay wall.) I am not one of those conservatives who claim that the investigation was a witch hunt (I don't pretend to know) but it was troubling both in its conception and execution. It has been my view that we are not served by vaguely worded statutes defining political crimes that can be interpreted to apply to both true abuses of power and garden variety politicking. Expecting those crimes to be enforced by partisan elected officials - even those with the best of intentions - further aggravates the matter. Ordinary politics ought not to be criminalized.

Nor are we served by the kind of partisan irresponsibility that marked much of the public discussion of the Doe. I found it shocking that a member of the bar running for Governor allowed rampant speculation about a legal proceeding to be advanced in his name. I understand that politics ain't bean bag and a political campaign can be a bit like a fist fight. You could hit in the face and you lash back. But all the sepia toned ads about Scott Walker and Dragnet-style Democratic party websites would look silly today if they had not been so irresponsible then.

Cross posted at Purple Wisconsin.

Saturday, March 02, 2013

Mad dogs and communications directors

There is no real point in getting upset over Democratic Party official Graeme Zielinski's comparison of Scott Walker to Jeffrey Dahmer. Zielinski steadfastly refuses to behave like someone who ought to be taken seriously and so I don't. (In fairness to him, he did apologize which is, I suppose, a baby step toward reform.)

What I find intriguing is why the Democratic Party continues to put this guy front and center. His latest bout of political Tourette's was hardly the first and may not even have been the worst.

I  would find it easier to believe that Zielinski is a creation of the Koch Brothers - put forward to make the Democrats look bad - than to think that this is the guy who rational people (and, no, I don't think that rationality is limited to one side of the aisle) would want as a spokesperson. If he didn't exist, I would think that the Republicans would have to invent him.

But I may be wrong. While he may have gone too far this time, he has remained a spokesperson after saying some pretty outrageous things. I have to assume that this is at least a calculated - if not necessarily smart - decision.
That may say something about the state of our politics. It may be that hate arouses the base and that someone willing to spew it serves a purpose. My side has some flamers as well although I can't think of one who has remained in an official capacity after repeated bouts of public rabies.
Pity that.

Cross posted at Purple Wisconsin.