If you clear it, will they come?

In last Sunday's paper, the Journal Sentinel editorial board says that "the best argument" for investing $35 million to clean up the (almost) "post-apocalyptic" Tower automotive site is that the private sector won't do it.

With all respect, that's not any type of argument for doing it. If the private sector would do it, there would be no need to even think about using tax dollars.  It is, at best, a necessary condition for consideration of the city's plan, but it's hardly sufficient.

Here is what is missing.

Why won't the private sector do it?

After all, $ 35 million is hardly beyond the capacity of private financiers. Ironically, the editorial board hits the nail on the head when it admits that it would "like to have a better idea of how this development fits into a comprehensive economic development strategy for Milwaukee" and that it remains to be seen " how to persuade businesses that returning to Milwaukee's central city is a good move."

This is a little like saying that my budget for next year is complete. Now I just have to figure out how to get some money.

Of course, neither the paper nor the city want to say that there is nothing that can be done to re-vitalize a huge expanse of land that looks like the set for "Escape from New York." Certainly, we can - we must - do something that can help. But wishing it were so does not make it so.  It's not as if there are no reasons to think that the area might not be an appropriate site for economic development, but the City's current plan passes a distressing resemblance to an episode of South Park.

Of course, I'm having fun and it may be that the project turns out to be the right thing. In fact, I sincerely hope it does. There may well be circumstances in which private money turns out to be necessary to unlock development and, while I think those circumstances are wildly overstated both by public officials and developers hankering for taxpayer largesse, it is possible that this is one of them.

But what planners hope will turn out to be another Menomonee Valley could end up as a second Park East corridor.

Would it be better to wait until there are some committed users for the site rather than clearing it on spec. the result may be a long, slow process of attracting small and marginal users. Perhaps that's the best use of the money. But shouldn't that possibility - perhaps even that likelihood - be acknowledged?

Same as it ever was?

There is some interesting stuff in the Winter 2012 issue of National Affairs. One of the President's re-election gambits is to tell a story about an America that once was in which middle class people have far more than they do. It is sometimes buttressed by selective uses of statistics but mostly simply asserted.

I find it a curious claim because I was, of course, present in that distance past and, as far as I can tell, teachers, cops, firefighters, nurses and other so called "mid level" workers don't seem to enjoy a lower standards of living that we did back then. In fact, their homes are bigger, their cars are better (and they generally have two; we never did), and the houses are full of lots of gadgets that we never could have dreamed of. It does seem to be true that there is a greater need to learn a skill - you can't do as well by low skill work at a factory - but people seem to be acquiring those skills. To be sure, the recent economic downturn was bad but it would be a mistake to suggest that it characterizes the recent past or that it was different in kind from post-Great Depression downturns. By some measures, it was the worst but not by such a margin to suggest some fundamental change in the nature of the economy. Indeed, it's worst aspect may prove to be the boom and bust in housing prices which have proven to be devastating to those who either bought or leveraged at the wrong time.

Scott Winship of the Brookings Institute looks at the numbers. He finds that average Americans today do not face a materially greater risk of income reduction, unemployment, loss of health insurance or retirement insecurity than they did in the past. To be sure, there are ways in which the economy has changed for the worse (and for the better) but the dire tale told by the President turns out to be wrong.

In the same issue, Ryan Messmore looks at the issue of income inequality finding that inequality among income quintiles is less than commonly supposed (when one takes into account things such as all sources of income and the size of households) and cites the work of Cornell University economists who have found that the rise in income inequality has actually been slower over the past twenty years than in the twenty year period before that.

I don't claim that these two articles end the debate but they track a lot of other stuff that I read and are worth taking a look at.

This may be why we see so much emphasis on "the 1%) (of which, in case you were wondering, I am not a member). They have done much better over the recent past although their share on the national income dropped precipitously from 2007 to 2009 without making anyone else noticeably better off.

This is something of a parlor trick.  As well as those fortunate few have done, we can't expect to close the deficit or make anyone else materially better off by taking their stuff. Perhaps we should let the Bush tax cuts expire for people over a certain limit, end the capital gains treatment for carried interest for a handful of hedge fund managers or impose an alternative minimum tax (now that has a great history!) on people who report too much tax advantaged income.

But it will hardly make the world anew or even be much reason to prefer Barack Obama over Romney or Santorum.

A few words on redistricting

Earlier this week, I finished discussing redistricting with my students in Election Law. There are, I think, overarching observations to be made regarding the ongoing redistricting litigation in Wisconsin.

There is almost no chance for a successful challenges to the plan as a "partisan gerrymander." This is not because the plan doesn't favor Republicans. It does and, if the Democrats had controlled both houses and the state house, they would have written a plan to favor their candidates.

The reason the challenge can't succeed is that such claims are effectively "nonjusticiable," i.e., the courts won't hear them. Put briefly, in  a 1986 case called Davis v. Bandemer, six justices held that claims of a partisan gerrymanded were justiciable. The plurality opinion (which, as a practical matter, established the standard for such claims) placed the bar at almost Olympian heights. Proving that the majority political party intended to benefit itself would not be enough. The constitution, according to the plurality, did not require that a map be "proportional" and the mere fact that a a plan makes it more difficult for one party to win seats would not render it constitutionally infirm.

To the contrary, a plan would be subject to successful constitutional challenge only if it would "consistently degrade a voter's or group of voters' influence on the political process as a whole."  The discrimination against a challenged group would have to be substantial and the plaintiff would have to produce evidence of "continued frustration of the will of a majority of voters or effective denial to a minority of voters of a fair chance to influence the political process."

Not surprisingly, plaintiffs had little success under Davis. In 2004, in a case called Vieth v. Jubelirer, four justices voted to abandon Davis and declare these claims nonjusticiable. In so doing, they noted that claims brought under Davis "almost invariablty failed." A fifth, Anthony Kennedy, would not go that far but he agreed that there was currently "no agreed upon model of fair and efficient representation" and, therefore, there was "no basis to define clear, clear, manageable and politically neutral standards for measuring the particular burden a given partisan classification imposes on representational rights." But although he could not currently imagine a judicially manageable standard for assessing such claims, he was unwilling to conclude that someone might not develop one in the future. So, although he joined in the majority in rejecting the claim before the Court, he left the abandonment of Davis to another day.

So the current state of the law is that a majority of the Supreme Court either regards these claims to be nonjusticiable or cannot conceive of a standard by which they can be adjudicated. Even under  the older case law, the standard employed was such that the plaintiffs almost never won. Some scholars have concluded - and I agree - that this renders partisan gerrymandering claims "effectively dead." Rick Hasen, one of the leading election law experts in the country (whose text I use even though I frequently disagree with him) writes that plaintiffs will not "and should not win partisan gerrymandering claims until a consensus forms around a standard by which they can be evaluated.

So one does not have to engage in extensive analysis of the new plan to know that claims that it unfairly treats Democrats and benefits Republicans are going no where. It doesn't matter if that's what the Republican majority was trying to do. That claim is effectively dead as a matter of law.

Lest the commenters misunderstand, this is not an argument that partisan gerrymanders are "OK." It is a recognition of the fact that you can't effectively challenge them in court. The remedy for those who want to redistrict in some other way is political.

The plaintiffs in one of the current lawsuits, Baldus v. Brennan alleges that the plan has departed more than it has to from the prior map, causes "too many" people to have to wait six years to vote for Senator (an inevitable part of redistricting) and creates districts which, in the plaintiffs view are insufficiently compact and contiguous or consonant with "communities of interest."
But the US Consitution does not require maximal adherance to a prior map or districts that are contiguous and compact. (The Wisconsin Consitution might but the plaintiffs will be unable to  advance state constitutional theories in federal court.)
Nor do plans get invalidated because they split "communities of interest" which are, in any event, multiple and pluriform. The principal example advanced by plan opponents illustrates this. The new plan splits the counties of Racine and Kenosha by combining the cities of Racine and Kenosha. You can argue that this splits a community of interest, i.e., residence in the same county. But you can also argue that it respects one, i.e., residence in proximate urban areas.
There is, in addition, no rule that the number of people who must wait six years to vote for a state senator be minimized. Courts recognize that this is an inevitable consequence of redistricting and a requirement that the number be minimized would require abandoning other legitimate redistricting principles.

In other words, the lawsuit alleges a number of things that, even if true, do not form a basis for invalidation of the plan.

There is more room for a successful challenge under the Voting Rights Act but these challenges, even if successful (and they don't seem strong), are likely to affect the map only at the margins. To be sure, changing one part of a map is like pushing in on a balloon but, given the nature of Voting Rights claims and the concentration of minority populations, a successful challenge is not going to make the map materially more favorable to Republicans.

Whether or not the Republicans violated the Open Meetings law is another question entirely and one that I haven't looked at closely enough to have an opinion on. Maybe later.

How many recall signatures?

I don't know that the 15% invalidation rate reported by the Journal Sentinel is the right one.  I do think that it is very unlikely that recall challengers will invalidate enough signatures to avert a recall. I don't recall talking to many politicos who harbored much doubt that public employee unions could gather enough signatures to force a recall.

The paper's method of selecting petitions, developed in consultation with MULS Visting Prof Charles Franklin, seems reasonable and my understanding is that the margin of error is plus or minus 4.5%  That margin might be larger if the rate of invalid (or unverifiable) signatures is not evenly distributed among circulators - as it might not be if invalidity is substantially impacted by intentional misconduct. If there were a small number of circulators who turned in a disproportionately large number of invalid signatures, that might affect one's confidence in the estimated strike rate. But, again, my understanding is that the more petitions are spread among a large number of circulators, the less likely this is to be a problem since all circulators had a chance of being included in the random sample in proportion to the amount of signatures that they turned in.

In addition, the actual rate of invalidity may differ depending on the method of verification. If, for example, the Verify the Petition people use a more exacting verification process, they might produce a higher rate of invalid signatures.

So I don't think there are a million valid signatures but I am pretty sure that there are more than 540000. There is, nevertheless, value in vetting the petitions. The public has an interest in knowing whether there are really a million signatures and, if some circulators or signatories broke the law, that fact is significant even if the number of signatures exceeds the minimum.

A Tale of Two Decisions

Last week, a panel of the Court of Appeals vacated Judge Davis' order directing the GAB to undertake certain activities in connection with the Walker recall petitions. The decision does not reflect a determination that Davis was wrong on the merits*, but only that he should have let recall proponents intervene in the case before deciding. Presumably what he must do now is permit them to participate and then decide again.

Here's one for you. While I think Judge Davis was clearly right, I think that the Court of Appeals has a point on the intervention issue. It's not a point that is often recognized. In fact, what the Court of Appeals did can be criticized as inconsistent with a line of appellate decisions that do not require   intervention to parties that are essentially taking the same position as the government. In other words, these cases say that, while the trial court has discretion to permit intervention, it generally need not do so when the parties seeking to intervene will take the same position as the Attorney General - in this case, that the GAB need not take the steps that the plaintiff Friends of Scott Walker argued that it must take.

The Court of Appeals tried to distinguish these cases but its altogether  persuasive. Still I think the Court had a point. In cases of substantial public interest, those who are most immediately affected by a case (as the recall proponents undoubtedly were), justice may be served by letting those parties in along side those whose defense of a position is only officially required. If the Court means to signal a more favorable stance on intervention), then it is to be welcome. Broader public participation in these cases is a good thing.

Of course, in court cases, even if intervention is not permitted, participation as amicus curiae generally is.

Then there is the GAB's announcement that it will not consider submissions by persons other than recall proponents and the office holders subject to recall.

The idea that it may not do so (a position reported by the media) is fairly weak. Nothing in the statute governing recall (Wis. Stat. sec. 9.10) limits participation in the process to the filers of the petition and the targeted office holder. The closest the statute comes is in language authorizing (or, perhaps, requiring) the targeted office holder to file a challenge within ten days. But there is no language making this exclusive or superimposing a "system" or "process" that has no place for the broader public.

A better question, it seems to me, is whether the GAB must allow such participation. Does the public at large have a legally cognizable interest in a recall election going forward only if the requirements for a recall are met? Even if it does not (and although there is certainly some interest in not having a recall free for all), is it right - as a matter of policy - for the GAB to allow absolutely no participation on the part of the larger public?

To be clear, I do not think that GAB should "partner" with independent organizations. That would be wrong. But the merits of a decision to announce - a priori - that the board will not to listen to such groups (which is what we have here) is not self evident and certainly not articulated in Kevin Kennedy's memo to the board.

There is a certain - albeit not precise - congruity between permitting interventions in law suits and allowing public participation here. In one case, we have a decision in favor of broader public input. In another case, we see that participation rejected.

The Penultimate Word (for now)

Lots of comments in response to Friday afternoon's post asking two well known political bloggers who are swooning and speculating over the John Doe proceeding if they had ever engaged in political activity while employed by the government.

I have yet to hear from my old Backstory colleague Jim Rowen but Bill Christofferson says he never did campaign work on government time. I take him at this word.

But he subtly shifted the question. I used the word "political activity" intentionally. In a prior post, I asked about a series of things that an elected official or staffer might do on state time using state resources. The point was to make obvious that there are all sorts of things that are heavily political and inextricably bound up with campaigns that these people almost certainly do from their government offices. Bill does not - and I suspect could not - deny engaging in some of them. He would have been a poor staffer if he could.

As I posted, the point is not that we can't specify a subset of these activities that we can call "campaign work" and prohibit it. It is only 1) that there are going to be many cases where the line between work that is "political" but not "campaign" will be hard to draw and 2) that drawing this line will not accomplish nearly as much as we think it will in removing "politics" from government offices or reducing the advantages to incumbents of having publicly paid staff.

These observations have two implications.

The first is that the law needs to be quite specific in setting forth what is and is not permitted. Failure to do so not only raises around due process, fairness and notice concerns, it also maximizes the discretion of partisan prosecutors who, even if they are pure of heart and say their prayers at night, are subject to partisan pressures and confirmation bias. In the cases of Rindfleisch and Wink, the allegations do involve a specific statutory prohibition (although one that seems to call for misdemeanor and not felony charges). Charging other types of activities may be more problematic. If you don't believe me, consider the fact that the participating justices in Chvala split evenly on whether the statute being used in the Rindfleisch case could be applied to the "campaign activity" at issue there.

Second, the relatively limited advantages to be gained ought to affect what is charged and at what level. It ought to inform how we discuss these matters. The heavy breathing, references to "dirty work," etc., don't match what we know. For example, the comments here seem to presume that there are allegations of people who did nothing but - or little more than - campaign work on county time. But that is not an element of the crimes that Rindfleisch and Wink are charged with.

What we have seen so far from the John Doe is small ball. Yes, yes, yes, that may change although one does wonder what, if not politics, causes it to dribble out. But, at least so far, every time we are promised more, it doesn't really come.

Finally, considering what really goes on may help us understand cell phones and laptops. More to come.

Just wondering ...

It is my recollection that certain bloggers who are rather free with speculation and adjectival fury about the Governor and those who worked for him  had stints in the government (e.g., Bill Christofferson and Jim Rowen)

So in light of this morning's post ...

I wonder if Bill and Jim would be willing to declare under oath that they never did anything that might be considered political work during normal business hours or in government offices. Can they say that they never used government phones, computers, stationary or (you now, these guys are a little older) mimeograph machines and carbon paper for political stuff?

Inquiring minds want to know.

Of politicians behaving politicially

I want to write about the issues that might be presented by having laptops and cell phones and wi fi in government offices. But before we do, we need to consider what might be considered political activity and the difficulties in extracting it from government work for certain types of government employees, i.e., political appointees at relatively high levels.

The point has made been made in the comments to an earlier post by George Mitchell. George's views can't be easily dismissed. He has been a significant player, serving as a journalist, high level aide and (with his wife Susan) a wildly successful advocate for school choice in Wisconsin. He knows what he's talking about. He also whips up a nice tailgate.

But let's use some hypotheticals.

Let's say that you are Senator Huffanpuff, a Democrat who opposes Governor Walker's proposed collective bargaining reform. You begin to receive and send e-mails about fleeing the state in order to defeat the quorum required to pass the fiscal provisions of the proposed legislation.

Political? On the one hand, you could say that you are attempting to defeat legislation. On the the other hand, it may be hard to argue that not doing your job is conducting government business. But let's assume, we are on the nonpolitical side of the line.

Now you begin to communicate with people about raising money to support your departure from the state. Political? You start to discuss, in e-mails, over the phone and in your office, how to frame messages about fleeing from the state. This discussion focuses not only on the merits of the proposed legislation but about criticisms of the Governor in general as overly pro-business, anti-union, yadda, yadda. It turns to how you are going to defend not coming to work. Political?

As you discuss these topics, the conversation turns to how you can convince other Democrats to join you. Before too long, the conversation turns to how some of your colleagues may be reluctant to do so because it will harm them politically and how you and others can help them to avoid that harm or to place countervailing political pressure on them, say, encourage a primary challenge or withdraw union support from those who refuse to flee. How do we let our wavering colleagues know what will happen if they choose to stay? Let's say you begin to reach out to people who can bring this pressure to bear. Political?

As you formulate a message, you begin to communicate with others about how to get that message out. You talk about consultants and funding to run issue ads attacking both the legislation and the Governor generally. Political?

You wonder about how you can place pressure on the Governor or, more realistically, wavering Republicans. Can their seats be targeted? Is recall a possibility? How can these threats be communicated to their intended targets. If everything before us was OK, have we now passed into political territory?

But let's keep going. Your sojourn at the Rockford Best Western doesn't work and collective bargaining reform is passed. It turns out that you are subject to recall. You start to work on position papers, speeches and ads that defend your actions explaining why you thought that the reform bill should not pass and criticizing Governor Walker and the Republicans? Are we political yet?

At the same time, you begin to work on selecting Republicans to be targeted for recall and recruiting candidates to run against them. We must be political now but what if this is done with an eye toward advancing the legislative agenda? The Court of Appeals in Chvala rejected that as a rationale for doing otherwise political work on the state dime -  but is that clearly the right outcome?

Keep in mind that many of these topics are often likely to be interwoven into the same conversation

The point is not that there is no line over which activity becomes clearly political. As I said, campaign fundraising would seem to be on one side of the line. There could be others, perhaps candidate recruitment or campaign scheduling, etc. It may be OK to post a self serving message on Senator Huffanpuff's "official" site but not to post the same message on his campaign site.

But that there are many things that are not clearly on one side and the other. Additionally, even activity that might be clearly political is interwoven with policy and legislative activity and activity on both sides of the line is often interconnected. Many things can be said to have both political and legislative or policy implications.

It is easy enough to say that there should never ever be political cooties in a public office but not so easy - and maybe both inefficient and undesirable - to keep them out in the real world.

Even where the line is clear, the things on one side of the line may not be sufficiently different from those on the other side to warrant the conclusion that crossing it threatens the Republic. How much better is the world if Senator Huffanpuff can plan and execute messages and activities with political ends in mind, but just can't engage in formal campaign activities?

I can certainly think of reasons to maintain that line but I don't know that doing so is a major bulwark against corruption or distortion of the political process. This is why I argue that a felony for Rindfleisch - even for something that she is accused of doing before - seems like overkill. This is why, I think, "everyone does it." The law always struggles when it attempts to prohibit things that people both have strong incentives to do and don't believe to be intrinsically wrong.

The matter is further complicated by the fact that we allow these state employees to be involved in their bosses campaign. For key staffers who are essentially always on call, the idea that they stop doing part of what they see as their job between 9 and 5 may seem a quaint and formal restriction.

In fact for certain activity, it may not seem like something that the law requires. More on that to follow.

GAB Should Release the Petitions

Was the GAB justified in petitions delaying the release of recall ? It's hard to see how.

Let's start with some recent case law. In an 8-1 decision, the United States Supreme Court recently held that persons who sign petitions to place an initiative on the ballot have no privacy interest against public disclosure of the petitions. Doe v. Reed, 561 U.S. __ (2010)

Reed involved a federal constitutional challenge to Washington state law compelling disclosure. The GAB, should it decide to withhold signatures, would presumably rely on Wisconsin law (which the Reed case, of course, does not address) which does permit personal identifying information in public records to be withheld "if the the public interest in allowing a person to inspect, copy or receive a copy of such identifying information outweighs the harm done to the public interest by providing such access. " Sec. 19. 36(8)(b)

Reed is instructive on this issue, holding that there can be no privacy interest when people have committed what is essentially a legislative act. This increases the public interest in learning their identity (so that the validity of the legislative act can be verified) and the reasonableness of any expectation of privacy (because signatories know - or should know - that they have undertaken an act that must be publicly verified.)

The same reasoning applies to the "balancing exemption" referred to above which must, in any event, be applied in light of the open records law's strong presumption in favor of disclosure. See sec. 19.31 ("The denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied.")

I do have some sympathy for the argument that state laws compelling disclosure may need to be constitutionally curtailed when they facilitate harassment and retaliation. But the idea that people who want to recall Governor (who constantly tell us they embody the will of the "people of Wisconsin") will be subject to harassment or retaliation to an extent that defeats the public interest in open verification of the recall is ridiculous.

Concern has also been expressed about the potential threat to victims of domestic abuse whose address will now become public. Perhaps that might justify a short delay to mask the identifying information of those few individual although, in the internet age, the likelihood that anyone's address is truly private is small. In any event, this would not seem to be a sufficiently strong interest to keep one million signatures seeking recall of the state's highest elected official from public scrutiny.

Update: Bill Christofferson suggests that there is a difference between open records and online records and that's true. He is wrong, however, to suggest that this makes an open records request for these petitions a non issue. The GAB has presumbably scanned these petitions into a searchable electronic data base. That is now a "record" subject to production under the open records law. They don't have to put them on line. They do have to produce them as they have them.

A limit to politics

An extremely well written and poignant piece by Jan Riordan regarding the illness of her dog Reggie. My guess is that her husband had to go through it a few times before he could read it on the air.
I find it moving in part because I have heard Jan talk about that dog and I know how much she loves him. But,  even more so, because I suffer from - and glory in - the same attachments. We had to put down a couple of Goldens within several months of each other in 2010. On the way to the vet, I stopped and bought the big guy, Derry, a hamburger. He couldn't stand up anymore but he enjoyed that burger.

He trusted us to the end. I wish we deserved it.

I think she's right in that there is a sense in which these guys are better than we are. They can't take care of themselves but there is a very real way in which they take of you. They require something from us that requires a deeper understanding of who we are.

Not a bad life if you can do that.

A question about the John Doe charges.

So here's an interesting legal question regarding last week's charges.

Kelly Rindfleisch was charged with four counts of violating sec. 9.46.12(3) which prohibits using a discretionary power possessed in one's capacity as a public employee or official to obtain a dishonest advantage for another. This is the statute that was at issue in the caucus scandal and, as noted in my previous point, the Wisconsin Supreme Court split on whether it could be applied to the political activity undertaken by legislative employees at issue there. Violations of sec. 946.12(3) are class I felonies and may be punished by up to 3.5 years incarceration and/or a fine of up to $ 10,000.

The problems with applying sec. 946.12(3) in the caucus cases  were Due Process, Notice and unconsitutional vagueness, i.e., did the charged parties have fair notice that their conduct was prohibited by the statute. The Court of Appeals rejected the defendants' argument but, as noted above, the Supreme Court split. That left the Court of Appeals decision standing but the issue open for future cases.

As I've posted before, this defense may not work for Rindfleisch because she is charged with a specific form of conduct, fundraising, that is specifically prescribed by statute. Sec. 11.36(4) prohibits soliciting or receiving contributions from a public building. Sec. 11.36(2) prohibits a public employee from soliciting or receiving contributions during established working hours.  There is a bright line between asking for money and other types of arguably "political" work. In limiting the charges to this type of activity, the DA deserves some credit.

But can she be charged with a felony? Maybe not and here's why. Sec. 11.61 specifies the criminal penalties for conduct prohibited elsewhere. Ss. 11.61(1)(a) and (b) specify that some of these things can be class I felonies but the activities allegedly engaged in by Rindfleisch - soliciting contributions from a public building (or even during established working hours) - are not among them. To the contrary, it is included in sec. 11.61(1)(c)'s catch all provision providing that all other intentional violations of Chapter 11 "may be fined not more than $1,000 or imprisoned not more than 6 months or both." In other words, Chapter 11 both prohibits what Rindfleisch is allegeed to have done and makes clear that it is a misdemeanor. (This is what Wink was charged with.)

Does this suggest that sec. 946.12(3) ought not be construed to apply to Rindfleisch's behavior? Does it reflect a legislative judgment that what she did is not a felony and ought to be penalized only to the extent provided for in sec. 11.61?

To be sure, the same conduct may violate more than one criminal statute but I don't know that this commonplace observation answers the question. Here we have a specific prohition that the legislature has expressly said is not a felony but a misdemeanor. There appear to be no additional elements involved in charging a violation of sec. 946.12(3). Indeed, it's not clear that sec. 946.12(3) could be properly applied to this conduct without the bootstrap of sec. 11.36. Shouldn't the specific provisions of the chapter 11 control ?

I don't practice criminal law and I haven't researched the matter beyond what is set forth above. But I know some pretty good criminal defense lawyers read this blog from time to time. I wonder what they think. Is there a potential defenses along these lines?

More John Doe

There has been an interesting comment thread following Friday afternoon's post on the Rindfleisch and Wink indictments.

I agree generally with Ed Fallone's comments on prosecutotial discretion but "generally" is the operative word. This is not garden variety white collar crime. They are offenses arising from political activity charged against the partisans of one side by a partisan of another. There is no way to avoid that but I think it suggests  few cautionary points.

First, it is not a good idea to give prosecutors broadly framed statutes that can be applied to common place behavior. Even if these laws are not intentionally abused, there is the potential for uneven application, disproportionate consequences and the use of criminal law as a political weapon - if not by the prosecutor, then by complainants and commentators.

This concern is not as salient as it might otherwise be here because, at least so far, the charges involve conduct - fundraising on government property - that is clearly prohibited. (There may be a legal question regarding the DA's ability to charge a felony for such conduct. But that's a separate post.)In this regard, it is interesting to note that no charges have been filed with respect to the conduct that supposedly prompted the investigation - comments posted to the Journal Sentinel website by Darlene Wink. The DA deserves credit for not charging that.

Second, even if there are not notice and vagueness problems, we still have concerns about disproportionate consequences and uneven application. Let's take the former first. As Ed points out, the offense here is malum prohibitum (wrong because prohibited) rather than malum in se (intrinsically wrong). (Someone might argue that it is malum in se to deprive taxpayers of a full day of work, but that is not an element of the offense that has been charged and it is unclear whether that happened.)

Ed is right that people get punished for crimes that are mala prohibitum, but we can't stop there. Offenses that are wrong only because prohibited generally are punished less severely than those that are wrong in and of themselves.

There are at least two reasons for that. The first is that the offender is less morally culpable. As Jay Heck points out, Rindfleisch and Wink may have been arrogant and stupid but they have not have not committed a horrendous crime. Don't believe me? Consider this.

Both women were absolutely free to raise funds for political candidates. Had both picked up their laptops and walked over to the Public Library or the coffee shop at the Hilton, they wouldn't be in trouble today. (They might also have to do so "outside established work hours" if they had established work hours. I'd be astonished, though, if we started to prosecute politicians and political appointees for leaving work to attend to fundraising.)

Of course, they didn't leave the building and now they have to pay a price for that. But the notion that the failure to do so should draw felony charges and prison time does not track for me. I felt the same way about Chvala, Burke, Foti and Jensen.

The other reason that we tend to treat crimes that are mala prohibitum differently is that the absence of intrinsic moral wrong tends to result in more frequent and widespread violations. We know that there will be more violations by people who are otherwise law abiding and this restrains prosecutorial and sentencing practices. We can't throw the book at everyone and this has a mitigating impact with respect to those people who do manage to get caught. It's not that we decide that breaking the law is OK, it's just that we know there are a lot of people who have done the same thing and have not been caught and that influences what consequences are fair.

My problem here may be more with the law than prosecutorial discretion. Fourteen years for sending some e-mails on fundraising from the office? Defend it if you want. I wish you luck.

This takes us to the problem of uneven application. The problem here is not necessarily with the DA. Local prosecutors address local problems and the Milwaukee County DA would not typically have jurisdiction to investigate the Dane County Executive or the Governor. (One might wonder if the same effort was - or should have been - expended on investigation of the Mayor's office  but I don't pretend to have the answer.)

If nothing else, decentralization of decision-making has resulted in a twenty months of turning the activities of a single politician's office inside out. At this point, that effort seems to have found relatively little but my larger point is that only one politician has been subjected to this withering scrutiny and, given the nature of political appointees, it is highly likely that, were the same exhaustive examination applied to the offices of other politicians, we'd find more or less the same thing.

Of course the fact that "others are doing it" is no excuse. That would be more reassuring if our public discourse maintained a scrupulous care about who and what has been charged and what has and has not been proven.

But we don't. Partisans are going to distort and misrepresent these charges. They are going to run ads that grab newspaper heads that are, at best, incomplete and, at worst, misleading. That's politics but it ought to be kept in account when we craft laws concerning political behavior and as we enforce them.

John Doe skirts the edges

A couple of things about the charges emerging from the John Doe yesterday.

First, it is harder to make the type of legal objections (due process, fair notice, vagueness) to allegations grounded in fundraising activity. The statutory prohibition of fundraising is clear and the line between fundraising as political work and other activities such as developing policy or engaging in certain forms of outreach and advocacy. The one thing that Wink and Rindfleisch should have been clear on is not raising political money on government time.

Second, as with the caucus scandal, I continue to dislike dealing with this type as a criminal matter. I understand the theory - you don't want to give incumbents the advantage of having people campaign on taxpayer time. But it seems to me that to ask political appointees to stop being political is like expecting a dog to give up a bone. Of all the advantages that incumbents have, a few political appointees doing political work from the office would seem to be pretty far down the list. Even if criminal charges are appropriate, charging these things as felonies and exposing people to a potential of fourteen years in prison strikes me as overkill.

More fundamentally, it leads to the threat of partisan use of the prosecutorial process. If you spend eighteen months scouring through the activities of any elected official with substantial appointed staff, you are probably going to find a few Winks and Rindfleischs. Who gets tagged with scandal is largely a function of whose opponents are willing to invest (public) resources to find one.

What would you find if you subjected the offices of Tom Barrett, Jim Doyle or Kathleen Falk to this kind of scrutiny?

Third, the timing (and, to a lesser degree, the composition) of the the complaints have a partisan tinge. There could be an explanation for the fact that the DA spend eighteen months to produce what really are two relatively simple complaints, but the timing - on the eve of a recall election - prompts one to raise the question. What took so long? Why now?

I also find it odd that the complaint goes to substantial length to suggest that the candidate that Rindfleisch raised money for - Brett Davis and not Scott Walker - was "preferred" by certain people in Walker's campaign. Why does that matter? The implication that some will draw is that she was doing this "for" Walker. While I may be overly sensitive, it is, strictly speaking, unnecessary to support the charges - if she was obtaining a dishonest advantage for Davis it doesn't matter who else supported Davis -  and one would ordinarily not place extraneous matter in a criminal complaint.

If an implication was intended (or if others draw it), was it fair? If the DA could link Walker to this activity, he would have charged him. If, as apparently is the case, he cannot, then perhaps he should stick to knitting. This would have been particularly prudent given the outsized resources devoted to a John Doe that has thus far produced very little, the foregoing questions about timing and the extraordinary leakiness of the entire operation. Why appear to be partisan when you don't need to?

Fourth, as suggested by the last point, there is still nothing that implicates the Governor in anything. Walker's only appearance in this complaint is to tell his people to cut out anything that might look like political activity. To be sure, partisans are going to use that to suggest that he "just didn't want to get caught" or that he "knew" what was going on, but here's the bottom line. After eighteen months and God knows how many tax dollars, we have precisely no wrongdoing by Governor Walker - only two people who worked for him.

Fifth, as scandals go, this is small ball. If Wink and Rindfleisch raised money on county time in county facilities, they acted foolishly but there are a lot of fools in the politics. It is not clear from a perusal of the complaint, for example, whether they spend more time fundraising than a lefty blogger spent "weblogging" or reading blogs or doing whatever it was he was doing instead of his job.

Sixth, the allegations regarding a "secret e-mail" system are interesting although a bit of a misnomer. Apparently certain people were using laptops for political work and the accessing the internet through means other than the county's ISP provider to communicate with each other. According to the complaint, some of these communications were related to county business.
I wonder how many public officials use this or other tactics in an attempt to engage in communications that won't be subject to open records requests. How many of these officials do these things in an attempt to comply with the law, i.e., to keep political and government business separate?I also wonder how many even stop to think about whether there are other reasons not to do it?

Finally, while I don't think it's necessarily illegal to create such a system, I also don't think that the records created on it - if they relate to official business - are immune from open records requests.

Perpetual recalls as constitutional amendment

Wisconsin used to elect governors to two year terms. We amended our constitution in x to extend the gubernatorial term to four years, presumably because we think it takes at least that long to give an administration a fair shot at implementing its vision of state government.

But I guess we're going to back to two. Bill Kraus (who people have finally stopped calling a Republican) wonders if this season's recalls will be followed by a return to sanity:

Will, when this is all over, the combatants come to their senses and take a pass on the use of recalls to protest misguided (subjective) votes and procedures instead of high crimes and misdemeanors as reasons for impeachments and recalls, and revert to the more traditional representative government remedy for incumbents’ bad policies and votes--the next election?

Not a chance.

I don't think that the Democrats and public employee unions will remove Scott Walker from office, but, if they do, they can expect the threat - and perhaps the fact - of recall to become the new normal.

The problem is this: There is no argument for recalling Governor Walker other than a dislike for his policies. He hasn't committed a high crime or misdemeanor. He has used the power that voters gave him and angered the party of government. he has been no less peremptory and partisan than Jim Doyle. Notwithstanding what appears to be a year and a half long proctological examination by the Milwaukee County District Attorney, we have yet to see any allegation of wrongdoing by the Governor. (And, no, even the charges that Dan Bice's scofflaw sources think are coming won't amount to that unless he himself is involved. Give me eighteen months and I can find campaigning by political appointees in any one's administration.)

While one might think that the Democrats' success in collecting lots of signatures is indicative of a belief that this is special, I'm not so sure. Given the right policy decision by a Democratic (i.e., one that outrages the conservative base), I think that Republicans could do the same thing. Look at the way that they matched unprecedented Democratic turnout efforts in the Supreme Court and summer recall elections. The public employee unions are good at this type of organization, but technology has not only made this type of mobilization easier, it has also leveled the playing field.

I don't see it happening immediately if a Democrat unseats Walker and a sufficiently conservative Democrat (think Tim Cullen) might avoid it altogether because he or she won't do anything that arouses opposition (and satisfies the left), Even someone further to the left who will rally the Republican base in opposition (think Kathleen Falk) is unlikely to face recall in what will essentially be a two year term.

But imagine a new Democrat elected in 2014 who, like Scott Walker, attempts to implement significant and substantive policy changes. Don't think for a moment that recall will be off the table.

Escalation is a game that everyone plays.

If you don't want perpetual recalls, vote for Walker.

Or support a return to two year terms.

On the John Doe: Curb Your Enthusiasm

A couple of things to keep in mind regarding Dan Bice's story concerning coming charges against people who worked for Scott Walker.

First, these "sources" are probably breaking the law by talking to Bice. John Doe proceediings operate under orders of nondisclosure directed ti witnesses and lawyers. In other words, anyone in a position to know these things is under a duty not to disclose them. While you can imagine more benign explanations, Bice's sources are either speculating or violating their legal obligations. Whether or not the former are wrong or the latter lack credibility, only time will tell.

In the meantime, if John Chisolm is not beside himself, he should be. If these "sources" truly know what they clain to know, it is highly likely that they are in his office.

Second, assuming that the charges here are a variation on the "caucus scandal' cases invovling Republicans like Scott Jensen and Steve Foti or Democrat Chuck Chvala and Brian Burke, the legal validity of those charges is uncertain. In other words, it is not clear that doing political work from government offices is a crime.

Indeed, in the Chvala and Jensen cases, the Wisconsin Supreme Court split 2-2 on whether the prosecutions could go forward. The political activities in question were clearly contrary to the legislature's rules (although not its bipartisan conduct), but the Justices split on whether it could be criminally prosecuted.  Justices Wilcox, Prosser and Butler did not participate. Justices Crooks and Roggensack apparently would have found that the prosecutions were unconstitutional for due process, fair notice and vagueness concerns. Chief Justice Abrahamsons and Justice Bradley would have allowed them to go forward.Because the court of appeals had held for the state, the decision below remained standing and both prosecutions went forward.

Of course, we don't know what will be charged (or if it will be charged) but, even when we do, we may not know whether it's really a crime.

Newt's Love Life

There is an argument that the circumstances regarding Newt Gingrich's marital history is relevant My own view is that, in terms of assessing character, other people's marriage circumstances are almost always nonjusticiable. Relationships are normally complex and we almost never can know enough about someone else's life to assign "blame" (or even to know whether there is "blame") for martial woes. This is not moral relativism. It's a moral humility that recognizes that this is an area of life that outsiders can't really know enough about to judge.

Still, family break-up is an enormous problem for children and, in particular, children of low income parents who often lack the resources and social capital to handle the consequences. Some conclude that the "bad example" offered by Gingrich (who, you have to admit, has a tough history) is appropriately counted against his candidacy.

A good argument for that point of view. alneit from a Catholic perspective,  is offered by Ramesh Ponneru. But the argument - as Ramesh recognizes - goes only so far. It suggests that Newt's marital past is a negative factor, but not a dispositive one.

Here's an historical question and a thought experiment. First, the historical question. Which of the following group of Presidents was stronger: Teddy R., Harding, FDR, Ike, JFK, LBJ, Reagan and Clinton or Taft, Coolidge, Nixon, Carter and the Bushes, There are, I think, good and bad in both groups but most people on both sides of the aisle would probably chose the first. I think you know what divides them.

Here's the thought experiment. Imagine that you are a committed supporter of Barack Obama (perhaps you are) and believe that his re-election is critical to the future of the country. In a tearful press conference, Michelle Obama announces that her husband has has an affair and proposed that she allow him to continue on with his mistress. She refused and he has decided to divorce her and marry the other woman.

Are you going to vote Republican?

The answer, for most liberals that I know is "of course, not" and I don't blame them. As much as they might disapprove of the President's conduct, the fate of their country (as they see it) trumps whatever judgment they might form (if they can form a judgment) about his behavior as a husband.

But what about that cardinal sin of a morally agnostic society, hypocrisy? Aren't the Republicans the party of family values? I have at least two problems with that. First, are we now to presume that the Democrats oppose family values? I know that they get accused of that, but I haven't heard them accept the criticism. Second, there is a difference between fostering an ideal and recognizing that it cannot always be achieved. This is one of the reasons that concern about marital dissolution and its impact on kids (for what it's worth, the children of Gingrich's first marriage were older at the time of his first divorce and he had no children with his second wife) does not imply the prohibition of divorce. The promotion of an ideal does not require us to ignore human fallibility or the nature or real world relationships.

Interestingly, the Marianne Gingrich story seems to have had no impact in deep red South Carolina where Gingrich handily carried both evangelicals (itself a nice trick for a Catholic) and married women.

I am not a fan of Newt Gingrich and I'm not supporting him for the nomination. He is a man with enormous gifts and enormous flaws (these things often go together). He's got more problems than serial monogamy, But if the choice is between Newt and Barack Obama, the public good requires, in my view, voting for Newt.

PolitiFact Flubs on Falk

Further to the quirkiness of PolitiFact, this rating of Kathleen Falk's statement that she saved Dane County about ten million dollars by agreeing to wage and benefit "reductions" is bizarre.

The union agreed to trade off higher co-pays and deductibles for protection against the need for higher pension reductions. That is trading one benefit for another.

The union also traded pay reductions for increased personal leave. Unless you think that the county gets nothing for a day of work from a unionized employee, then reducing work in return for reducing pay entails a cost. The same can be said for trading pay reduction for the ability to bank additional sick pay or a commitment to make no layoffs.

These may or may not have been good ideas but they were not "reductions" that "saved" ten million dollars. They were paid for at a real cost to taxpayers.

Perhaps a false rating would not be in order. There were reductions in wages and benefits even if they cost the taxpayers in other ways. In response to an earlier version of this post, my colleague at WILL, Tom Kamenick (calling out the boss ! - good for him) argues that we'd say that layoffs "saved" money. That thought had occurred to me and it doesn't surprise me that Tom would be smart and candid enough to point it out.

He has a point but a politician who had laid off employees would have to justify the cost associated with they layoffs and we wouldn't say that employees wages and benefits were "reduced."

Falk offered this in response to a claim that Walker's reform saved taxpayers money. She claimed that her "reductions" were an example of her doing the same thing through negotiation. As PolitiFact points out, she was trying to argue that she could do the same thing as Walker in a way that public employee unions would like.

But it wasn't the same thing. Walker reduced state expenditures by a lot in exchange for more modest service reductions. Falk seems to have given up as much as she gained. Maybe that's a good thing but, by failing to point out the ways in which the agreements cost the taxpayers money would seem to be, in PolitiFact's terms, either an accurate statement  that "leaves out important details or takes things out of context" ("half true") or  a statement that "contains some element of truth, but ignores critical facts that would give a different impression." (mostly false).

Silly Job Narratives

Wisconsin had robust job growth in the first six months of last year and suffered a decline in jobs during the last six months. The net has been an increases in both private (13500) and total nonfarm (3200) employment during 2011. Compared to a total work force of 2.74 million in the state, it's safe to say that employment has remained flat.

So what do we make of this?

Partisans on the left want to say that Scott Walker's budget is to blame for the decline in employment over the past six months. This argument will become increasingly important to them as it becomes clear that their earlier claims that the Walker budget would devastate public services turn out to be hysterical.The argument is that it "sucks demand" out of the economy. 

If you give this claim more than superficial attention, it proves too much, doesn't it. It suggests that government creates demand that would otherwise not exist by spending money. How can that be?

In the national context, classic Keynesian stimulus has said that we can "inject" money into the economy by borrowing it during recessionary periods. Whatever the merits of this, the analysis is different on the state level. The state can't borrow money to finance current operations so it's choices are limited to shifting money from the pockets of taxpayers to the recipients of government spending. It can neither inject money into or "suck it out of" the economy. All it can do is move money from one pocket to another. (This criticism is not entirely inapt to national economic policy as well but it's not as simple.)

So, for Walker's budget to be blamed for sluggish job growth, the argument has to be that the money will be more productively spent by those to whom the government will give it than by the taxpayers, e.g., that it is better to let public employees pay little or nothing for their health insurance than it is for homeowners to pay lower property taxes.

If Democrats want to make that argument to recall Scott Walker then God bless them.

Of course the fact that this claim would be a political nonstarter doesn't disprove it. Maybe its true but it's not self evident. The job numbers don't prove it because there are far more substantial items affecting the state's economy than the state budget and the impact on the recipients of state funds and the taxpayers may be timed differently, i.e., state workers see an immediate reduction in take home pay but taxpayers don't see lower property tax bills until December. It is also not clear that the most productive uses of funds will have an impact at the same time as less productive uses. If, for example, it is better to encourage investment than current consumption, the benefits may take longer to realize. We may have to accept a sluggish short term for a more robust long term. (This is one of the criticisms of the argument that "austerity"doesn't work. It might well work depending on how it is executed.)

My own sense - formed after years as both a Democrat (I was once chair of the North Shore Democrats) and a Republican is that our expectation that the government can "create" jobs or fine tune the economy are overstated. Neither the President nor the Governor sits in the basement mouse clicking and turning dials to run the economy. We should assess public policy more modestly and ask whether it has or has not provided a needed public service at the lowest possible cost. If a train makes sense, build it. If schools are underfunded, increase their funding. But do neither of these things because we think that spending the money will create jobs without regard to whether the expenditures make sense, i.e., are superior uses of the money.

On that basis, the Walker reforms look pretty good.

This was no peppercorn

In Sunday's Milwaukee Journal Sentinel, community columnist Chuck Baynton, who is a physician and a self-described "peace activist" (normally a synonym for "left wing" activist), tries to play the lawyer's game of hypotheticals to show that Justice Michael Gableman's arrangement with Michael Best was a gift.

He plays it like a guy who went to medical school.

But, in fairness to Dr. Baynton, he's not the only one. Others ahve done the same thing, essentially arguing that Gableman should be subject to professional discipline - (and perhaps even criminal charges under chapter 19) - because the deal that he cut with Michael Best was "too good." The firm didn't, in the view of these two, get "enough" for its services to be something other than a gift.

Think about that for a minute. The argument is that people's careers should be ruined because of a subjective after the fact determination that the deal was just wasn't good enough for the firm.
Dr. Baynton supports this with the reductio ad absurdum suggesting that we'd call it a gift if Michael Best worked for a dollar or a Megabucks ticket. Maybe we would.

Although there is a presumption in the law against requiring that consideration necessary to support a contract to be more than illusory (hence the famous reference to a "peppercorn" being sufficient), we might want to interpret the Judicial Code and Chapter 19 a bit differently. (In fact, I suggested that in one of the first posts I wrote about this.) Perhaps there are some forms of consideration too obviously insubstantial to support the provision of services to a judge or other public official. Maybe a dollar or a Megabucks ticket would fall into that category.

But that's not this case.

This case involved a contingency arrangement in which a lawyer agreed to accept fees only if he won and, even then, only those fees that might be awarded to him on application to the state claims board.
How do we tell if that could be adequate consideration?

Well, one thing we might do is look to see if lawyers ever enter into such arrangements in other contexts where there is no suggestion of a gift. When we do that, we see arrangements that look an awful lot like this. Lawyers in civil rights and class actions cases do it all the time. They agree to accept fees only if they win and, even then, to limit themselves to whatever fees might be awarded on application to a tribunal, usually the court that decides the case.

That is this case.

In almost a month of public discussion of this matter, I have only heard two responses to this. The first is a non sequitur. It says that those arrangements are different because they almost always involve representation of a plaintiff.

But that doesn't tell us why the client's position in the caption ought to matter. These contracts are almost always with the plaintiff because the governing law generally permits - at least in the great run of cases - only plaintiffs to recover. Not true here. The governing statute expressly permits awards to prevailing respondents (the equivalent of a defendant in an ethics case).

A better - but still insufficient argument - focuses on the likelihood of fees being awarded. Note that this argument can't rest on the fact that fees are awarded only if the client (Justice Gableman) prevails. That's true of all contingency arrangements.

Instead, one must argue that it should have been clear to Justice Gableman and Michael Best that it was improbable that the state claims board would award fees even if he won.

But why would they have thought that? The statute is on the books and clearly permits the payment of fees. The fact that it has only been used - and could only have been used - one time reflects nothing more that ethics complaints against judges are rare, not that this type of arrangement is unusual or that fees were unlikely to be awarded. That they were not fully paid in the only case in which the statute has been - or could be - used doesn't tell us much about what would happen here.
The best thing that this argument has going for it is that it was likely that the legislature would have had to approve a fee award. That does make the recovery of fees improbable. Why would we assume that the state claims board and legislature would not honor the fee request of a sitting Supreme Court justice?

To be sure, there were reasons - including political reasons - for the firm and Justice Gableman not to enter into such an arrangement. If I were in the place of either, I might have chosen not to do it. But it's quite another matter to say that the arrangement was unethical or illegal.

I have yet to read an effective and thorough response that supports the claim of illegality. I have seen references to "smell tests" and "gut checks" and I respect that. But we don't send people to jail or remove elected officials from office for misconduct based on olfactory or gastrointestinal disruptions. I have seen off the cuff ipse dixits from out of state law professors (although Professor Gillers apparently agrees with me that the arrangement was not improper.). But mostly I have seen sneering and snarking - accompanied by legal analysis that is the equivalent of holding up a sign at a football game. I have seen mischaracterization of the arguments that I and others have made and a failure to engage that is more consistent with cheerleading than discourse.

Again, recusal is another matter. More to follow.

Process reflections on recall day

I was a bit puzzled by last week's announcement by the Government Accountability Board that is has engaged an outside vendor to build a data base of the names and addresses on the recall petitions.  The article reports "[b]ecause of the judge's order, the board is purchasing software that can electronically read printed names that appear on the recall petitions and load the names into a database. " The cost of this is said to be $ 100,000 (out of an estimated nine million dollars for the cost of the recall statewide).
Is that right? Did the GAB really contract with this vendor after the judge's order. The GAB has always said that it was going to put the names on line.

If building a data base is not new, what is? Perhaps it is the ability to search the data base. Presumably this data base is searchable, e.g., it can look for duplicates.
Did the GAB have a contract to build a searchable data base prior to Judge Davis' decision? If not, did it have a contract that to build a data base that could be searched through the purchase of an upgrade? If that is so, was the cost of that upgrade in the neighborhood of $ 100,000?
And, it all of that is so, why did the GAB repeatedly say - or at least give the impression -  that it lacked the resources to conduct more than a cursory review of the names?

Reflections on recall day

I have always expected that the recall organizers would meet their mark. Public employee unions are very good at the type of organization that this requires and, it appears, did a good job. Given the value of electronic communication and social media in any such effort and the intensity of feeling on the other side, their success is not surprising.

But it is success and congratulations to them. While I doubt that there are over a million distinct and valid signatures, there should certainly be enough to hold an election. (Not that this should not be verified.)

Whether this translates into electoral success is another matter. Recall organizers did very well in last year's Senate recalls and wound up losing to four of the six targeted Republicans. There is no particularly strong candidate on the Democratic side and the other side is about to start playing.

We are a purple state and I suspect that the results of the recall election will show that. I think the Governor will win but I also suspect a close and hard fought race.

Odd suit against Clarke

This case strikes me as odd. The Milwaukee County Corporation counsel sues the Sheriff and alleges that deputy sheriffs who have been retained by the Sheriff in opposition to the County's budget and directive that Clarke eliminate certain deputy positions may not be duly sworn law officers. The suit suggests that the actions undertaken by these deputies may be illegal or otherwise subject the County to liability because they "aren't working" for Milwaukee County.

Why the Corp Counsel would argue this is unclear to me. It's one thing to say that the Sheriff should have eliminated these people and, in failing to do, is misusing County funds and even to sue him in order to force him to lay off the requisite number of deputies.

But its quite another thing to jeopardize criminal prosecutions and create the potential for other problems by suggesting that the activities of these officers are ultra vires. I haven't looked at the question but it seems unlikely that this is so.

Beyond that, why would the lawyer for the government of Milwaukee County want to suggest that is is so?

Of venue and forum shopping

My post on the Marquette University Law School Faculty Blog on Judge Davis' decision ordering the GAB to conduct a more extensive review of recall petitions can be found here.

The decision of the plaintiffs to file in Waukesha County has been derided as "forum shopping" facilitated by a new law that permits a plaintiff to, subject to certain exceptions, choose any county in which to bring suit in an action where the state and its agents are the sole defendants.

This provides an opportunity to comment on the idea of "forum shopping" and the new law governing suits against the state.

First, all lawyers will try to get their case into the best possible forum. For example, the current challenge to redistricting pending in federal court was a blatant exercise in forum shopping. The plaintiffs filed a challenge before the new districts had been passed. They did do by arguing that the old districts - which no one intended to keep - had become unconstitutional in light of the 2010 census. (As old districts always do.)

The purpose was to win the "race to the courthouse door" in an attempt to keep redistricting out of state court (which the US Supreme Court has suggested is the preferred forum). Do I blame the plaintiffs' lawyers for doing this? No. They were employing whatever tools were available to them.

The change in venue laws for actions against the state was a good idea that was poorly executed. It was a good idea because there is no reason to force taxpayers to Madison in order to sue their own government. One does not generally have to go to DC in order to sue the federal government and so it should be here. Looking at it another way, it may not inspire public confidence to require suits against the Company to be brought in the Company Town.

But it was not necessary to allow a plaintiff to pick any county. A better approach would have been to permit the plaintiff to sue in Dane or in any county in which a substantial part of the cause of action arose or the harm was suffered. These can be fuzzy concepts but they work in other contexts.

Because the new law went beyond that in giving the plaintiff an unlimited choice of venue, the law has a curious venue provision in the event of appeal.  The losing side in the trial court can pick the district in which the appeal will be heard as long as it is not the district in which the trial court is located.

I am sure that this was intended to discipline plaintiff's unlimited choice of forum but it also enhances the opportunity for gamesmanship - and we see that in the case challenging the GAB's intent to conduct a more limited review of petitions.

Of course, the plaintiffs chose Waukesha because they expected it to be a favorable forum. Having lost, the GAB Democratic groups (Ed.: It was Democratic groups that had attempted to intervene that filed an appeal - not the GAB) that attemted unsuccessfully to intervene have now chosen District IV of the the Court of Appeals which embraces - Dane County. They certainly expect that District IV will be a more favorable forum.

Of course,what you expect in a particular place is not always what you get. Judges are limited by the law in ways that politicians are not. Neither Judge Davis' decision - or whatever a District IV panel might do - was or is foreordained. Lawyers understand that but if you can do something that might improve the odds, it's hard to explain  to your client why you shouldn't try..

So lawyers on all sides look to get whatever advantage they can. Railing against Republicans for forum shopping is only going to bring examples of Democrats doing the same thing.

And vice versa.

The changes in the venue law were undertaken in response to some serious objections concerning the old law but may not have been the best way to address them.

Who owns John Lennon

From the "Blogging Blue" site, two lefty bloggers who attended an Americans for Prosperity event found it odd that Republicans would listen to the Beatles' "Come Together."

 Yes, the AFP crowd was humming along to a John Lennon acid trip song, conveniently forgetting that John Lennon was definitely not one of them.

So are they saying that an "acid trip song" would be an appropriate theme for a Democratic event?

Just wondering.

A little common sense about free speech and nonprofits

Bill Lueders' article on the joint educational campaign of the MacIver Institute and Americans For Prosperity concerning the impact of collective bargaining reform and the current bieennial budget suggests that such communications are unheard of activity for a 501(c)(3). While acknowledging that the communiations don't refer to any candidate or contain any calls to vote for or against a candidate, the article quotes lefty "watchdog" Mike McCabe to the effect that the campaign is political advertising in masquerade. The reason, presumably, is that the communications take a position and disclose facts that place policies adopted by Governor Walker in a good light,. In McCabe's view, that makes it  "political."

But is that true? how unprecedented is this? Are there no 501(c)(3)s who, for example, put out communications that are unfavorable to Governor Walker? McCabe and Lueders don't know of any.


But I do. In fact it took me two minutes to find one. The Institute for Wisconsin's Future is a 501(c)(3).
It has put out a report entitled The Price of Extremism: Wisconsin’s economy under the Walker administration.  On it's website, it promotes the report under the heading "Walker policies costing Wisconsin jobs."

And then I remembered that Mr. McCabe himself has used his nonprofit's website to attack a candidate for public office in the middle of a campaign.

Now if the MacIver/AFP effort is close to the line, the IWF/WCD efforts must be well across it. They do mention a candidate for office. In fact, in an article discussing the report in the Shepherd Express, IFW's Director Jack Norman says that his 501(c)(3) organization's report " is a good reason to get rid of Walker midterm."

Now, as the President of a 501(c)(3), I wouldn't put stuff like that up on my website or be quoted saying things like that in connection with my group's activities (as opposed to in my individual capacity).

But I also wouldn't say IWF (or even WCD) has crossed any lines.

My point is simply that MacIver, AFP and IWF/WCD are basically doing the same thing.

If you are going to engage in educational (or even litigation) activities in the public interest, you've got to figure out what the public interest entails. There are all sorts of 501(c)(3)s - from the American Enterprise Insititute, Cato and the Institute for Justice to the ACLU, Brookings Institution and Brennan Center -with distinctive perspectives on that question.

Those perspectives may be reflected in the work that they do.The former group, being conservative or libertarian, may take positions that are consistent with certain positions held by Republicans. The latter, being liberal, may take positions that are consistent with certain policies held by Democrats. This doesn't mean that they are engaged in prohibited political activity.

This doesn't mean that these groups - whether on the left or the right - take "marching orders" from political groups or trim their work. If a person spends any significant amount of time thinking about things like law and policy or economics, she is probably going to develop a set of beliefs about these things that influence her work going forward. To be completely "disinterested" in the sense of having no distinctive views is often tantamount to being uninformed.

Now I can anticipate that some people are going to think it significant that MacIver and AFP have spent a lot of money communicating their conclusions and IWF (at least to date ) has not.

But how much money you spend doing something is irrelevant to whether it is or is not prohibited political activity. All political activity is prohibited. All activity within exempt purposes is permitted. (The amount spent can be relevant on lobbying but this isn't lobbying.)

One must, of course, comply with campaign finance regulations but these communications are not subject to Chapter 11.

So maybe the MacIver/AFP effort is not so unusual after all.

One more word on ethics and recusal

My op-ed on the ethics allegations against Mike Gableman in last Thursday's Journal Sentinel is here.

I want to follow up because the editorial board and I missed each other. I did not know that what I wrote was going to be published as "Another View" or that the topic was recusal and not the ethics issue. All I knew is that they wanted to publish an edited version of a post on Shark and Shepherd. They offered to do the editing but also gave me the opportunity to do it myself. I chose the latter. Because of the difficulty in covering this stuff in 500-600 words, I decided to focus on the ethics question.

This isn't a criticism of the paper. This just came up at the last minute and I probably should have asked what the context was going to be. But since I didn't, I want to say a few things in response to what the paper wrote.

First, it is not true that all nine of the cases in which Gableman participated and MBF had a client came  before the Court during the period in which MBF represented the Justice. Some, including the Act 10, arose after the representation had ended.

Second, it continues to astonish me that neither the media nor commentators acknowledge the fact that this type of contingency arrangement is not uncommon. In fact, it is, from time to time, extended to public officials. For example, John Siefert, a Democrat and circuit court judge, appears to have had such an arrangement in an action challenging certain restrictions in the judicial code on speech and campaign activities by sitting judges and judicial candidates. When he won, his lawyers (Jim Bopp and Mike Dean) asked the court to award fees.

I recall representing American Family Insurance in a redlining case in which one of the plaintiffs was then alderman Marvin Pratt. The case was both a civil rights suit and a class action - two areas where contingency arrangements are ubiquitous. I don't know, but I would be surprised if Alderman Pratt's relationship with his lawyers was not similar. I do know that, when the case was settled, there was a negotiated fee award.

Third, in response to this, none of Gableman's critics engage the issue. They continually refer to the somewhat - but not completely - differing nature of a contingency in a personal injury case (which no one seems to thing an injured judge could not enter into) or just say "well, he didn't pay." But, as I and others have pointed out in painstaking detail, that doesn't answer the question of whether the relationship was a gift.
Because lawyers enter into these on a regular basis, it is reasonable to assume that the opportunity to recover fees is adequate consideration for the provision of representation. If that's so, then the arrangement is not a gift by the very terms of the Judicial Code.
While a lawyer who wants fees under sec. 757.99 may have had to get them approved by the legislature, this is also not unheard of . I've represented clients on claims that required such approval and they are considered by the legislature on a regular basis. It's another hoop to jump through, but it hardly precludes recovery in an appropriate case.

All of this, it seems to me bears on the issue of recusal. In a (relatively) recent piece in the Wake Forest Law Review, I argued that recusal in a court like the Wisconsin Supreme Court is different. That court is a law developing court of last resort that acts collegially, i.e., the justices hear cases and vote on the outcome. When a justice steps down, he or she is not replaced.

These facts suggest that aggressive recusal standards are inappropriate. While there are cases in which recusal is proper, it is not correct that a Supreme Court justice should "err" on the side of recusal or step aside whenever some one might think that his or her judgment might be affected.
Having published this view long before this controversy arose, I am fairly confident that it was not developed in order to defend Justice Gableman and I have argued for its applicability to more liberal members of the Court who sat on cases in which significant campaign contributors had an interest.

And keeping that view in mind, I am fairly confident in arguing that Justice Gableman was not required to recuse himself in the Ozanne case just as those justices whose campaigns had been handsomely supported by public employee unions or who stood to lose significant income if Act 10 were to become law (this would be all of them) were not so required.
His relationship with MBF had ended and neither party had any further obligation to the other.

My view is bolstered by the fact that a contrary view would make it very difficult for any sitting justice to obtain counsel. If there were a duty of recusal that "lingered" even after a representation had ended, few good lawyers would want to harm their practice in that way.

GAB must review petitions

My sources tell me that the plaintiffs have obtained at least partial relief in their suit against the GAB this afternoon. The circuit court has apparently ruled that the GAB does have the power - and the duty - to strike duplicates, illegible signatures and fictitious names.

More to fellow. Guess that suit wasn't frivolous.

Today's "hang Walker" balloon has burst

For those who are so sure that there is a shoe to waiting to drop on Scott Walker as a result of the eighteen month old John Doe investigation, today had to be disappointing. Word came out this morning that the District Attorney was going to issue charges. A former Walker aide had been arrested. The glee and anticipation on the part of bloggers and touts and even Democratic politicians was palpable.

And what do they get? Charges as a result of an investigation into missing funds that was initiated because the Walker administration asked for it. It was Walker's chief of staff who was concerned that  funds from a county sponsored program to benefit veterans might be missing. In other words, we have a former Walker employee charged with stealing money from a Walker administration program as a result of an investigation initiated because the Walker administration dropped a dime.

Talk about corruptus interruptus.

There was speculation this morning on at least on lefty blog concerning "where the money went." To Walker? No, it turns out, that the money is alleged to have spent by Tim Russell on personal needs including a vacation with his domestic partner, Brian Pierick.

Where is Scott Walker in this? In about the same place as any other guy who has an employee who is alleged to have stolen from the shop. My guess is that he feels, if the charges turn out to be true, betrayed and, on behalf of the taxpayers and veterans who benefited from this program, victimized.

The only way that you can turn this into something that reflects poorly on Walker is to make him responsible for anything that someone who works for him does and ignore the facts of the case. If the allegations are true, then a guy who worked for Walker did a bad thing for his own reasons. The bad thing actually hurt something that Walker wanted to do. To put this on Walker is guilt by association. It is, quite literally, to blame the victim.

But I am sure that there are folks out there who are sufficiently clueless or mendacious to do just that.

Santorum's Time

Rick Santorum is the latest Anybody but Romney. The Bachman, Perry, Cain and Gingrich boomlets are over. Each was tried and found wanting. Can Santorum do any better?

The argument that he can't make it is that he is too socially conservative. The guy is a serious Catholic who gives social issues more than a nod an a wink. To be sure, some of his positions on these issues will be misrepresented or misunderstood (see the comments to my post about Alan Colmes) but Santorum is at odds with elite sensibilities about matters of faith, sexuality and family in a way that most national politicians are not. He will get "Tebowed" (in a different sense) by Saturday Night Live, sneered at by Maureen Dowd and generally portrayed as the second coming of Torquemada. Again, much of it will be unfair but his moment at the top is going to test the proposition that a someone who is seriously religious and fundamentally committed to traditional values can be successful on a national level.

How he handles this criticism is going to be important. To be sure, he needs to point out the differences between what he has said and what he will be accused of saying, but he's also going to have to adopt a reassuring tone that reflects his own commitments without being seen as censorious. Can he do it? We'll see.

But there is more to this guy. He is not out of touch like Bachman, uninformed like Cain, compromised like Gingrich and, shall we say, challenged like Perry. This is a guy that Bono likes. He can be portrayed as many things, but mean is not one of them. Although there are going to be questions about his commitment to limited government, there is nothing about him that will turn off the conservative base and certain things about him that could appeal to independent voters who think that humility, responsibility, constancy and care are important attributes for a President. Whether he can communicate any of that is anyone's guess.

You wonder about new entrants although I suspect that the timing of the primaries precludes that. But there is blood in the water and, if Romney falters at all in New Hampshire (i.e.. does not win by "enough"), we could be in uncharted territory.

Should Alan Colmes be fired?

I, thank God, have never lost a child. I can imagine nothing worse. I can imagine nothing worse, in part, because I have one (and three grandsons) and because I am married to someone who did lose two children - one a stillborn and one at six months. Her pain is not mine, but I have learned from it.

So I feel quite comfortable in saying that Alan Colmes' shot at Rick and Karen Santorum's behavior in the wake of the death of their son, Gabriel,at  two hours after birth is one of the most reprehensible and insensitive things I have ever seen a "responsible" public commentator do.

I hope that it is more insensitive than reprehensible. I hope that Alan Colmes is just too insensate, too stupid and too wrapped up in his little Manhattan cocoon to know how awful his remarks were. I hope his problem is that his head is empty and not that his heart is poisoned.

But I'm skeptical. His statement that the Santorums brought the child home to "play with" suggests an intentional mean spiritedness. The description suggests a frivolity and denial that is not a fair characterization of what happened.

I'm skeptical because Rich Lowry tried to set him straight and Colmes persisted.

It is not hard to understand why the Santorums did what they did (even if many of us think we would have chosen differently.) One of the ongoing hurts for those who have lost a child in infancy is the way in which the child is forgotten - someone who is there but was not. Senator Santorum and his family were trying to avert that. They were trying to create a sense that Gabriel was part of their family, albeit one who would not be with them n the years to come.

But beyond that, the way in which someone deals with the unbearable is private and not to be cheaply questioned by those who were not there. Colmes has profoundly insulted those who have been there.

So here's a thought experiment. If you lose your job by coming too close to making a remark that might be interpreted as insensitive to a racial or ethnic group, why shouldn't Colmes lose his job over this?  My own sense is that Colmes' remarks reflect a certain disdain for the conventionally religious.

I'm not calling for that because 1) who cares what I think and 2) I dislike firing people because they made one stupid remark. But this is as bad as I've seen.

Colmes thinks the episode bears on Santorum's qualification to be President. It doesn't. But it did, it would cut in his favor. It would show that Santorum has a respect for life and for his family that speaks well of his character.

Colmes has apparently apologized to Santorum who has accepted his apology. I think this should end the matter.

So to answer the question at the beginning, my answer is "no." But it was, as they say, a teaching moment.

Charges against Gableman remain a stretch

Sunday's  article by Patrick Marley makes an effort to respond to the arguments that I and others have made that the relationship between Justice Michael Gableman and Michael Best was neither unethical nor unlawful. 

Let's review the bidding. It is pretty clear that the relationship between Justice Gableman and the law frim did not result in favorable treatment of Michael Best's clients. Gableman's votes in those cases did not differ materially from those of other members of the conservative majority.

But that doesn't close the issue with respect to either the state or judicial ethics code. My argument - and that of Gableman's lawyer (Viet Dinh who is a quite accomplished and nationally respected lawyer) - has been that the arrangement is supported by consideration and, in fact, bears significant resemblance to arrangements that lawyers and clients make every day. While Marley and those he quotes have chosen to focus on the contingency arrangements in personal injury cases, a better analogy is the agreement of lawyers in cases involving civil rights claims, class actions or other "fee shifting" statutes to limit themselves to whatever fees a court or other tribunal might award.

In such cases, a lawyer must prevail, persuade the court to award fees and then justify the amount of the fee request. A lawyer will often be compensated at a lower rate and for fewer hours than would be the case in a purely private arrangement. In such arrangements, there is not, as one of Marley's sources - a lawyer named Paul Gossens -  says of personal injury contingencies, a guarantee of "X number of dollars if you prevail...." Mr.  Gossens is wrong. The universe of contingency arrangements is larger than that.
So, in response, Marley's sources want to say that the probability of Michael Best obtaining a fee was "clearly" below some threshold below which such an arrangement must be a gift. In setting forth my argument, I anticipated that objection. Normally, we don't look behind the fact of consideration to ask whether it was "enough" or whether one side could have gotten a better deal.
Beyond determining that the potential for a fee award is real, I don't know that an extended analysis of the likelihood of recovery is warranted (or, as noted below, even possible). Lawyers often take cases in which the potential for actually recovering a fee is remote. Sometime they do it out of optimism. Often, they do it because they believe that the case presents issues that ought to be heard or interesting questions that the lawyer would like to work on.

Some (but not all) of the professors quoted in the article are apparently certain that they know that this was "too contingent" for any lawyer to take. I am not sure how they arrive at that certainty. I am unaware of any standard for them to apply other than personal judgment. Sometimes that's all we have, but we ought to be reluctant to brand others as unethical and criminal because their judgment differed from ours.
It seems to me, then, that critics of the arrangement have to argue that the possibility of fees was illusory - something that would never really happen. In my original post, I suggested that we wouldn't have much precedent with how the contingency models works in the world of judicial complaints because there are so few  complaints. Sure enough, the article reports that there have only been twenty four in forty years and only one in which the judge prevails and could have asked for fees.
The Journal Sentinel article makes much of this case - a 24 year old case in which a Racine County Circuit judge was only able to recover a portion of his fees. What would have happened in a far more prominent case involving a Supreme Court justice may have been quite different. Even were it necessary for the legislature to approve fees, it is not unusual for the legislature to approve claims against the state. The fact is that we have very little precedent from which to form a judgment.
While we can accept that it would have been tougher to get fees than in a traditional personal injury case, that doesn't mean that the possibility of recovering them was nonexistent or so insubstantial that it must be ignored for purposes of applying the state or judicial code. I assume that Professor Gillers, one of the law professors quoted in the article, must agree because he does not believe that the arrangement was improper.
My position is bolstered, I think, by the fact that we are not dealing with discounted car rental rates but the provision of legal counsel in a case of substantial public importance. This raises due process implications and I would suggest that we be reluctant to interpret general ethical standards in a way that makes it harder - perhaps even impossible - for people to get competent counsel. In fact, although  it is not necessary to resolve the case, I would want to think a lot more before I announced that a public official cannot be represented on a pro bono basis.

It is not clear to me that there was an alternative arrangement under which Justice Gableman could have obtained counsel. He did not have the money. Although both the Judicial Code and Chapter 19 make an exception for campaign contributions, contributions to defray the costs of a defense against  ethical charges are not that and would presumably themselves be indicted (with far more justification) as impermissible "gifts."
In any event, the standards for determining criminal or ethical violations ought to be clear. The gratuitous and subjective off the cuff judgments offered by Marley's sources - to the effect that, based on one case almost a quarter of a century ago, the prospect of fees are too remote - don't cut it.
Of course, an arrangement need not be unethical to warrant recusal. And, conversely, not all arrangements that might lead to some judges or lawyers to call for recusal are unethical. That's an issue I'll return to in my next post on the matter.