Christian Schneider

Author, Columnist

Day: March 23, 2009

Observing the Law of Rule

The summer of my twelfth year, my father dictated to me my summer job: I was going to have to paint the picket fence around our backyard. I had never painted anything before, so I punished him by peppering him with inane questions. “Where do I start?” “What size brush should I use?” And so on. “I don’t care how you do it – just get it done!” he snapped. At least that’s what I think he said, as my ears were ringing from the accompanying smack upside my head.

As it turns out, state law very much follows “dad law.” When the legislature passes a law and the governor signs it, it constitutes a directive – “paint the fence.” But in many cases, it leaves the minute details up to the state department that will be carrying out the broad new law – “just get it done.” Departments accomplish the “I don’t care how you do it” part by passing “rules,” which reside comfortably in legal purgatory, somewhere between real laws and complete anarchy.

In many cases, the Legislature leaves their newly passed statutes overly broad, to avoid codifying every little detail in state law. For instance, state law dictates what crimes will land you in jail. Rules determine what kind of nudie magazines you will be allowed to view when you’re in the joint. Rules govern everything from how big a pier you can have on your house to what classes your barber has to take to obtain a license, including – and this is not a joke – 35 “theory hours” of “Shaving, beard and mustache shaping and trimming.” Who can forget Aristotle’s treatise on mustache waxing?

Yet rules, while having the force of law, are passed in a peculiar way that circumvents the traditional legislative process – and opens the door for hijinks. Rules changes are drafted by a department, then sent to standing legislative committees, who may then object to the rule if they believe it to be a bad idea. If it draws an objection, the rule goes to the Joint Rules Committee, where it can be suspended. However, if it is suspended, the committee must introduce bills changing the law to remedy their percieved problem with the rule. If those bills do not pass, the rule goes into effect – without ever having been altered by the legislature.

Thus, in effect, rules are like laws in reverse. Whereas passing a new law requires a bill proactively passing through both houses and being signed by the governor, rules essentially start as law and require bipartisanship to invalidate them. Thus, in the case of a split Legislature, one party can always block an objection to a rule made by their party’s governor.

This has become increasingly problematic in recent years, when departments are taking more liberties with their rulemaking authority. Instead of merely carrying out the directives given them by state law, some departments are granting themselves entirely new lawmaking ability, knowing that a split legislature will likely pave the way.

For instance, the Wisconsin Government Accountability Board has voted to promulgate a rule that grants their members the sole legal authority to regulate campaign advertising during election season. While the law creating the GAB merely charges them with enforcing current election law, they have decided to settle this contentious issue that has confounded the U.S. Supreme Court for decades by merely making up their own law. This isn’t painting the fence – this is building a whole new picket fence that runs right through our living room.

Other rulemaking attempts have been equally as brazen. In 2005, Governor Jim Doyle actually attempted to raise the state’s minimum wage via administrative rule, knowing that he could simply veto any bill passed by Republicans if they attempted to object to the change. The State Supreme Court is attempting to use the rules process to wrestle legislative redistricting away from the Legislature, which clearly usurps legislative authority to set its own Senate and Assembly districts. Recently, the Supreme Court enacted a rule that changes the instances when tribal courts have jurisdiction over non-tribal members, which will have the effect of denying many litigants their right to a trial by a Wisconsin court. In a blistering dissent, Justice Patience Roggensack observed the new rule “undermines federal and state constitutional and statutory rights of litigants.”

New laws are the bright, shiny new baubles on which we all like to gaze. Enacting them takes all the elements of a good political novel – intrigue, secret deals, undue influence, and bloated, self-important speeches on the legislative floor. On the other hand, administrative rules have all the sexiness of Jim Doyle in spandex bike pants. In fact, in contrast to laws, rules only actually pass when nobody thinks to publicize them. But like Doyle’s bike pants, the rulemaking process is beginning to expand beyond the limit set by law (and good taste.) Maybe these bureaucrats need my dad to smack them in the head with a paintbrush.

-March 23, 2009

Who’s Telling the Truth About the Court?

These days, it’s hard to get the Wisconsin Supreme Court to agree on anything.  But back in December of 2007, the Court stood united in its push for public financing of Supreme Court elections.  Earlier in the year, conservative Annette Ziegler had run a successful race against liberal attorney  Linda Clifford that featured substantial advertising from interested third party groups.  In their zeal to restrict these types of ads, the Court issued a letter calling for full public financing of court races, saying “Judges must not only be fair, neutral, impartial and non-partisan but also should be so perceived by the public.”

Well.

The Ziegler race was followed up in 2008 by Mike Gableman’s race against incumbent Justice Louis Butler – a race which featured ads that clearly obfuscated the role of a Supreme Court justice.  The ads – run primarily by the candidates themselves – portrayed the Supreme Court as some kind of law enforcement board, intent on keeping criminals in prison.  (We denounced this tactic at the time.)

Following Gableman’s victory, ideas started to flow on how to get court elections back to focusing on what the court actually does.  The Wisconsin State Journal has been on a Don-Quixote like quest to eliminate judicial elections altogether, believing voters aren’t capable of picking their own justices.

But the issue of public financing of Court elections still lingers.  Public financing supporters believe that shutting down independent ads and leaving the electioneering up to the candidates themselves will leave voters with a much clearer understanding of the role of the Supreme Court.

To those people, I offer this television ad from Chief Justice and current candidate Shirley Abrahamson:

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As you can see, Chief Justice Abrahamson is going to help you wiggle out of your bad mortgage – regardless of any kind of contract you signed, or regardless of whether any case dealing with your mortgage is actually before the Court.  Also, Abrahamson is “protecting consumers from abuse,” whatever that means.  She “stands up for all of us.”  Then, the denouement, from Abrahamson’s own mouth:

“The best thing a judge can do is to help people.  That’s what I do.”

Is she serious?  The best thing a judge can do is to apply the law as written to certain facts of a case.  The judge’s role isn’t to “stand up” for anyone.  “Standing up” for people means writing your own new laws to generate a favorable outcome – whether or not it actually ends up hurting people in the long run.  (Incidentally, where are these cases that “help people?”  Doesn’t being a judge necessarily mean resolving disputes in which some party eventually ends up not being “helped?”)

So I dare anyone to look at  that ad and tell me with a straight face that leaving campaigning up to the candidates themselves is going to give anyone a clearer idea of what the Court does.  If anything, Abrahamson’s own ad leaves voters with a cloudier understanding of her role as a judge – this is an ad that could easily be run by a candidate for legislative office.  That ad does more to undermine Abrahamson’s own “impartiality” than any ad by a third party could.

All public financing will do will be to shut out advertising that might actually set the record straight on Abrahamson’s record. So it’s no wonder Abrahamson favors public financing in Supreme Court races -with it in place, she could continue to exploit people with bad mortgages with impunity.

March Madness Thoughts

After this weekend, I\’m pretty sure my couch is going to file suit against me.  After the overuse and remote control-related abuse it took following 96 hours of NCAA basketball, it\’s probably going to form a union with my other furniture and go on strike.  But just a couple points:

1.  I\’m trying to think of a worse way that the four Marquette seniors could have ended their careers.  But if fans had thrown flesh-eating pirhanas onto the court that ate Jerel McNeal down to a skeleton, I\’m not sure it would have been as bad as Lazar Hayward stepping on the end line on the inbounds pass with the game on the line.  As one prominent ex-Milwaukee area sideline reporter wrote on her Facebook status, Hayward should be forced to repay his scholarship for the last four years.

After what turned out to be the last play, when the Marquette player (who was it?) got clobbered shooting a 3-pointer, I am impressed that Buzz Williams didn\’t get thrown out of the game.  If I were the coach, I would have tried to set fire to one of the refs at that point.  Not that it mattered, but it\’s pretty clear the refs had decided the game was over.

2.  I also spent a decent amount of time watching the Wisconsin high school boy\’s basketball tournament, eventually won by Madison Memorial.  Perhaps this is just another sign of my cultural detachment, but I was a little shocked at how many of the players on both teams in the championship game had tattoos.  It\’s easy to lose track when you watch so much basketball, but these kids are in high school.  One player on Memorial, Vander Blue (a future Wisconsin Badger) is completely inked up on his left shoulder – and he\’s a junior.  He probably got it when he was 15 or 16 years old.  (Blue threw down a filthy dunk over some poor kid in the semifinal game, which I wish I had video of.)

I had some vague recollection of the state law setting an age limit for tattoos, so I looked it up.  According to state statute 948.70(2), \”any person who tattoos or offers to tattoo a child (in this case, anyone under the age of 18)  is subject to a Class D forfeiture.\”  So, if you\’re caught tattooing a 13 year old, you have to pay 200 bucks.  It seems there would be an exception for parental consent, but that particular statute only allows for the tattooing of a child by a physician.

Of course, at no point in Mr. Blue\’s young life has anyone explained to him what a terrible idea it is to get a full-arm tattoo at age 15.  I generally want to forget everything that happened to me in high school – yet he\’s going to carry around whatever this is on his arm for the rest of his life.  Same goes for all the kids in that game that were tatted up.  It just seems that we, as adults, are now afraid to tell kids that what they\’re doing is wrong.  So now Vander Blue gets to walk around with a proud testament to his ignorance on his shoulder.

3.  If you watch enough of the high school tournament, you quickly realize that the whole thing is funded by WEAC, the state\’s teachers\’ union.  This would be the same union kicking and screaming that they don\’t have enough money to adequately educate kids – that their teachers have to buy their own pencils, rulers, and whatnot.

Could there possibly be a bigger waste of money than advertising for the state teachers\’ union?  It\’s not like they\’re trying to get people to buy toothpaste or workout videos or anything.  They already have a virtual monopoly on education in the state – it\’s not like people are going to see these commercials and say, \”whoa – sign my kid up for a public education!\”

But whether your kid goes to a public school or not, you\’re paying for these ads.  The money goes from your pocket to the government, which pays the teachers, who are forced to pay union dues, to WEAC, who then puts ads on TV trying to convince you that  they need more of your money.  It\’s the governmental circle of life.

4.  Bo Ryan is one of the 5 best coaches in NCAA basketball.  The results he wrings out of the talent he has is astounding.