Christian Schneider

Author, Columnist

Category: Courts (page 1 of 2)

How a Bill Does Not Become a Law: An activist Dane County court has brashly upended the rules of lawmaking

Schneider22.1Every two years, the Wisconsin Assembly issues an activity book for schoolchildren. The book includes a cartoon called “How a Bill Becomes a Law,” which details the happy life of an ebullient piece of legislation named Bill.

Bill leads a simple life — all he wants to do is one day earn the governor’s signature on his belly and become law. The cartoon follows his traditional journey, from hearings held on his merits, to committees voting him out, to both houses of the Legislature passing him before sending him to the governor to become law.

Such has been the legislative process since Wisconsin’s inception in 1848. Yet in recent years, Bill’s celebration upon being signed by the governor would be a bit premature. Having lost control of the Legislature and the governorship, Wisconsin Democrats have added another step: To become law, Bill must first pay a visit to the Dane County Circuit Court.

Dane County has the distinction of not only being the home of state government; it is also indisputably one of the most politically liberal counties in America. And despite being only one of Wisconsin’s 69 state circuit courts, it has essentially become a second legislature.

Our friend Bill may have earned the imprimatur of legislators elected from all over the state and the signature of a governor elected by a majority of Wisconsin voters, but a single Dane County judge can derail Bill’s attempt to find a cozy home within the pages of the state’s statute books.

This is a problem not just for poor Bill, but also for the unfortunate citizens around Wisconsin who elect Republicans to the state Assembly, Senate and governorship. The ballots of millions are counteracted by the vote of one robed master elected by a strongly progressive electorate, whose elevated position is not earned by any specific legal skill or expertise, but instead his or her proximity to State Street. In fact, until recently, any lawsuit against the state of Wisconsin had to be filed in Dane County, giving its Circuit Court an elevated importance over any other local court in the state.

And thus, the Dane County Circuit Court has become a legal ATM for the state’s progressives: Insert a court challenge, and out comes a favorable opinion that will cost your opponents buckets of cash to appeal.

So-called “venue shopping” like this isn’t all that new. For instance, the federal court in Marshall, Texas, has been traditionally known to be friendly to those seeking money for patent infringements, and large companies from around the nation typically end up in this small Texas town. Quick trials and plaintiff-friendly juries are the norm in Marshall (as is its annual Fire Ant Festival), making it a popular vacation spot for lawyers.

Of course, picking a friendly federal appeals court is tricky, given that you have to predict what the lower courts are going to do. But those looking for anti-business outcomes are generally served well by filing cases in the jurisdiction of the notoriously liberal 9th U.S. Circuit Court of Appeals, which covers nine western states. In 2011, the U.S. Supreme Court either reversed or vacated 19 of the 26 cases it reviewed from the 9th Circuit; two years earlier, the supremes shot down 94 percent of its cases.

The Dane County Circuit Court has proven itself another great haven for liberal venue shoppers. In March 2011, it found itself in the middle of a national controversy when Dane County District Attorney Ismael Ozanne filed a lawsuit attempting to block implementation of Gov. Scott Walker’s new law restricting public sector collective bargaining. Unable to prevail legislatively, Democrats attempted to sink the bill in the courts. And they found a very sympathetic ear in Dane County Circuit Judge Maryann Sumi.

It was important that Democrats get a lawsuit moving quickly; on April 5, Supreme Court Justice David Prosser was up for election in a race that would decide the high court’s ideological balance. Having a case pending in a state court would bolster the impression that the Prosser election was really an election about whether Walker’s broadside to the public unions would stand.

On March 16, seven days after the Wisconsin Senate passed the collective bargaining bill, Ozanne filed a lawsuit seeking not to overturn the law, but to prevent it from being published in the first place. Two days later, Sumi heard one day’s worth of testimony, issued a temporary restraining order stopping publication of the law and quickly left town on a weeklong family vacation.

On his blog, Marquette University law professor Rick Esenberg said he was “astonished” at Sumi’s ruling, noting that in 1943, the state Supreme Court held that judges may not enjoin the publication of a law on the basis that it is or might be unconstitutional. “A bill, in the court’s view, is not enacted until it is published such that publication is part of the legislative process with which courts may not interfere,” noted Esenberg.

On April 5, Prosser narrowly defeated his liberal challenger, JoAnne Kloppenburg. On May 25, attorneys at the state Department of Justice sent Sumi a letter indicating that they might seek her recusal. The very next day, Sumi issued her opinion striking down the law in its entirety.

Within months, the state Supreme Court assumed its role as the state’s legal janitor and cleaned up the mess Sumi had made. (She ruled that the state Senate violated the open-meetings law, but failed to acknowledge the pertinent exemption for legislative actions.) In a contentious decision that led to accusations of justices choking each other, Prosser excoriated Sumi, writing, “In turbulent times, courts are expected to act with fairness and objectivity. They should serve as the impartial arbiters of legitimate legal issues. They should not insert themselves into controversies or exacerbate existing tensions.”

While the Supreme Court vacated Sumi’s decision, the pro-union litigants were not done. On Sept. 14, Dane County Circuit Judge Juan Colas once again struck down Walker’s law, this time based on a challenge from Madison schoolteachers and Milwaukee city employees. The ruling blocked the law from being applied to school and local government workers, but it remains in effect for state workers and employees of the University of Wisconsin System. The case is being appealed.

Yet another case of “Walker nullification” took place when Dane County Circuit Judge David Flanagan, who had signed the recall petition against Walker, struck down a Walker-approved law requiring photo identification to vote. Inexplicably, Flanagan did not disclose that he had signed the petition.

While the U.S. Supreme Court upheld a similar voter-identification law in Indiana, Flanagan ruled that his opinion should effectively trump the Supreme Court because the Indiana law allows a voter 10 days after casting a provisional ballot to produce identification, while the Wisconsin law allows only three days.

The fact that Dane County always got the first crack at adjudicating lawsuits against the state clearly irritated Republicans, who in 2011 passed a law allowing plaintiffs suing the state to pick venues other than Dane County. Legislative Republicans took advantage of this new law during the Walker recall process, when they sued the state Government Accountability Board in Waukesha County, which they considered a friendlier venue.

This new law, however, does nothing to stop liberal groups from filing suits in Dane County. Esenberg noted that constitutional challenges to enacted legislation are “nothing new,” and that challenges aren’t always illegitimate. But he notes that cases filed by Democrats in Dane County have become uniquely problematic, given that Dane is a “company town.”

“You have exceptionally politically charged cases being brought in a county which has this sort of this toxic combination of being both politically homogeneous and politically aroused,” said Esenberg. “You had these pieces of legislation coming before elected judges in a county where people were marching in the streets, pretty much all in opposition to these things, which raises questions about the political pressures that may be brought to bear on a judge who finds himself or herself in that situation.”

And while the ability of circuit courts to strike down state laws is not new, the recent hyper-partisan way in which the courts are being asked to function will have long-lasting impacts on Wisconsin law. Scott Walker and the GOP Legislature may only be with Wisconsin for the span of a few years; the precedent of litigating everything as a political weapon may be with the state forever.

Those ideological pressures placed on circuit courts will likely boil up again now that the Legislature has passed a much-discussed bill to allow an iron ore mine in northern Wisconsin. Environmental groups are expected to file suit at some point to block the mine. And that move for an injunction will almost certainly be filed in Dane County.

Some judicial observers have argued that it doesn’t matter where cases like this begin, as long as the Supreme Court is there to serve as a backstop to Dane County. For conservatives, this reasoning is problematic.

First, while the makeup of the court currently leans conservative, the court is usually only one April election away from switching ideologies. Liberals need but a single seat, in other words, to turn the court from a stop sign to a green light for Dane County opinions.

One thing is certain — the more the lower courts are seen as mere political arms, the worse it is for the reputation of the Supreme Court. Some conservatives have grown frustrated that the Supreme Court hasn’t yanked jurisdiction away from the appellate courts and struck down Flanagan’s photo identification ruling, for example.

But as one justice told me, that’s not at all how the Supreme Court should work. The court, instead, should almost always let the process work itself out. Setting a precedent of clutching politically expedient cases away from appellate courts could be terrible for the right, especially if liberals regain control of the Supreme Court.

In the wake of the recent Dane County decisions, the Republican Legislature has also proposed changes to how cases are handled. One proposal, for instance, would have prevented circuit courts from blocking duly enacted laws. Esenberg believes this would be a mistake, not only given that some laws should be invalidated, but also because politics are cyclical, and one day Republicans will need lower courts to block the actions of a Democratic governor.

Esenberg proposed a potential remedy for over-politicization of the courts: If a circuit court wants to issue an injunction to block a state statute, the party opposing the injunction has 10 days to appeal.

According to Esenberg’s proposal, if the ruling isn’t appealed in 10 days, the stay is lifted and the injunction is effective. If the ruling is appealed, the stay would remain in place, and the appeals court would have to lift it. If both the appeals court and circuit court agree on the injunction, then it stays in place.

But regardless of what reforms might pass, Republicans will not be able to legislate Dane County out of existence. Challengers to Scott Walker’s agenda will continue to look to the Dane County courts to block the will of the people. And liberal judges will continue to garner awards like Sumi’s for being the State Bar of Wisconsin’s “2011 Judge of the Year.”

And this will be bad news for our good friend Bill, who will have to routinely pack his bags for Dane County. Maybe the state can get him some Badger football tickets to make his frequent stays more pleasant.

Prosser Dominates “Fairest Election Ever”

For years, so-called “good government” groups had been fighting to “level” the playing field in judicial elections.  They always believed that public financing of elections virtually eliminated advantages for certain candidates.  Last session, such a framework was passed into law.  (Perhaps not-so-ironically, this occurred when conservatives were elected to a majority on the Wisconsin Supreme Court and Democrats controlled the Legislature and Governorship.)

Liberals celebrated the new “fairness” in Court elections.  In last week’s Isthmus newspaper (to which I contribute a column), editor Bill Lueders asked aloud whether this month’s Supreme Court primary was the “fairest election ever.”

Said Lueders:

That means the Feb. 15 primary will occur on a relatively level playing field, with each contender having roughly equal resources. (Whether this will hold true for the general election is unclear, as court challenges or the GOP Legislature could yet kill public financing.)

On Tuesday night, we saw the results of the “fairest election ever.”  Incumbent Justice David Prosser dominated his opponents, receiving 55% of the vote in a four-way primary.  Prosser will now face his closest challenger, JoAnne Kloppenburg, who received 25% of the vote, in the spring general election.

So why did Prosser win by such a large margin in a primary election in which spending was equal?  Perhaps it was due to Wisconsin residents’ preference for conservatives on the Supreme Court.  But it likely had a lot to do with Prosser’s status as an incumbent.

And this is how, as argued on this blog previously, public financing harms challengers.  If spending is level, races will almost always favor the incumbent, as being in office had enormous advantages.  Incumbents have name recognition, voter contacts, and a record on which to run.

In order to overcome that advantage, challengers often need to spend more money to get their message out.  But when each candidate has only a $100,000 grant to spend, it is much more difficult to overcome the natural advantages of incumbency.

So while liberals may have thought the Supreme Court election was “fair,” it was anything but.  The most equitable way to conduct elections is to allow fundraising that translates into increased political speech.  Otherwise, voters will be inclined to support the guy they know.

Jim Doyle’s Legacy, On One Page

By now, you know that the Wisconsin Supreme Court has struck down Governor Jim Doyle’s attempt to pilfer $200 million from the state’s doctors in order to balance the state budget.  In the 2007 budget, Doyle took $200 million out of a fund paid in to by doctors in order to partially plug a budget hole.  The fund was meant to offset the cost of malpractice claims, and held costs for doctors down – which helped keep health care costs down for patients.

The Court considered this a taking from the doctors, and did so with a 5-2 majority.  (Which, on this Court, is as much of a blowout as a 5-2 score would be in the World Cup.)

Perhaps the most interesting aspect of this whole debacle is the Doyle Administration’s reaction to it.  The press release Doyle issued today is compelling, as it is a perfect representation of eight years of his reign.  In one page, the Governor was able to provide a perfect epitaph to his reign.  Consider it a Doyle chrestomathy.

Some choice passages from “The Jim Doyle Reader:”

The state Supreme Court has determined that the legislature was prohibited from using funds from the Injured Patients and Families Compensation Fund to support health care.

One sentence in, and we already have ourselves a howler.  “The legislature” was prohibited?  Keep in mind – Doyle was only able to successfully raid the Patient’s Compensation Fund (known by a different name now) after the legislature prevented him from doing so in 2003 and 2005.  Finally, in the 2007 budget, with Democrats controlling the State Senate and within a sliver of controlling the State Assembly, Doyle got his way.

Jim Doyle was the sole driving force behind taking these funds.  To suggest otherwise is preposterous.  But it gloriously demonstrates Doyle’s willingness to blame others and not take a shred of blame for his failures.

Paragraph two:

The $200 million transfer allowed the state to leverage an additional $300 million in federal funding.

And, as we all know, the end (more federal funding), justifies any means we use to get it.  I’m sure if Doyle stole money from all kinds of people it would be worth all the money the feds (in this case, the Bush Administration) rained upon us.  Just think how much federal money Wisconsin could have “leveraged” if we started kicking over old ladies and snatching their purses.  (Although if we stole my grandmother’s purse, the feds would have to match the state with 30 million cans of Aqua Net hairspray.)

Further down:

Today’s decision will not benefit any injured patients, it will not benefit anyone’s health – it will only benefit the peace of mind of a few members of the State Medical Society.

(Actually, it’s the Wisconsin Medical Society, but who really fact checks anymore?)  Or, perhaps it will benefit the peace of mind of the 13,431 doctors and other health care providers who paid in to the fund in 2009, and whose money was stolen from them to spackle over the fiscal mismanagement of this governor.

Final paragraph:

“An additional $200 million in cuts authorized in the budget, which we hoped to at least partially avoid, and other savings measures will now need to be implemented.”

“Other savings measures?”  Wasn’t “stealing money from doctors” booked as a “savings measure?”  Do we have any faith that anything they propose is going to actually save money?  Keep in mind that when this administration says they’re “cutting,” it’s rarely a cut at all.  In fact, it’s often a one-time fund swap that exacerbates the problem.

Perhaps the Supreme Court should already schedule a day three years from now when it can undo whatever Governor Doyle’s “savings measures” are today.

More final paragraph:

“We will also need to make additional cuts to the Medicaid and BadgerCare Plus programs through across-the board reductions in provider rates. These programs provide health care to 1.1 million Wisconsin citizens.”

This is the denouement.  There’s so much in these two sentences.

First of all, those programs provide health care to 1.1 million Wisconsin citizens because they were created without any way to pay for them.  Doyle overextended government by paying for a program with stolen funds, now he complains that there are a whole lot of people on the programs?  Whose fault is that?

Secondly, here you see the side of Jim Doyle capitol observers have gotten to know so well.  He promises to cut funding to the same doctors who had the temerity to challenge his theft.  It’s a vindictive threat – and perfectly caps off the Jim Doyle Story as will be told by the history books.  He just can’t help but threaten payback to his opponents.  What a sad man.

Of course, if he were to cut funds to providers, it would have the effect not of punishing doctors necessarily, but raising rates on patients with private insurance.  Doctors will need to make that cut up by raising rates on the insured.  So congratulations, Governor Doyle – your vindictive cut will have the effect of increasing the cost of health insurance.  You really showed ’em.

(Incidentally, it’s telling that Doyle sends his Secretary of Administration, the well-liked Dan Schooff, out to deliver his threats.  What a coward.)

As a postscript to all this, there’s a hidden portion of the Justice Prosser’s majority decision in the case overturning Doyle’s raid that deserves notice.  In paragraph 58 of the opinion, Prosser cites a 1995 Attorney General’s opinion that points out the “longstanding view in Wisconsin law that trust funds are to be treated differently than general revenue, and that the state has less power to regulate the use of trust funds.”

The author of that quote?

Jim Doyle.

Courting Politics

The Wisconsin Supreme Court is disgusted with how political the institution has become.  In fact, they are so repulsed by the political tone the Court has taken, they are trying to fix it by using the most powerful tool they have:

POLITICS.

Generally, we think of “politics” as the act of trying to get someone elected.  But three liberals on the Wisconsin Supreme Court are doing the opposite – essentially trying to get one of their colleagues un-elected.  Their shady effort to force Justice Mike Gableman to recuse himself from criminal cases is merely a veiled attempt by his ideological opponents on the Court to nullify the election in which the conservative Gableman beat liberal Justice Louis Butler in 2008.

It’s not as if liberals exactly take any hints from the voters, anyway.  In 2000, Butler lost to conservative Diane Sykes in a race for the Supreme Court.  Shortly thereafter, when a seat opened up, Democratic Governor Jim Doyle appointed Butler to the Court, ignoring the previous popular vote.  When the voters threw Butler off the Court in 2008 in favor of Gableman, the Obama administration appointed Butler to a federal judgeship.  (Maybe if Butler loses one more time, he’ll be ready for a U.S. Supreme Court nomination.)

Clearly, elections are of minimal importance to liberal jurists.  And we’re seeing that phenomenon in action with the Court’s actions to essentially overturn Gableman’s victory over Butler.

During the Butler/Gableman campaign, Gableman ran an ill-advised ad that accused Butler of being soft on crime.  The ad dealt with Butler’s time as child molester Reuben Lee Mitchell’s defense attorney, accusing Butler of freeing his client so he could then go on to molest another child.  In fact, Mitchell served out his entire term and only molested another child after his initial term was over.

The discretion in airing the ad was questionable – especially since the candidate himself ran it.  (We normally associate those types of ads with third parties, which will be discussed shortly.)  But Gableman didn’t show any bias against criminal defendants, and he didn’t break the cardinal rule of judicial elections by commenting on any future issues that may come before the Court.  He was merely doing what Supreme Court candidates do these days, by painting himself as a jurist who upholds the criminal laws as written.  (It should also be noted that Butler himself ran ads bragging that he’s “protected the public from criminals” and saying “if you rob someone, you should be punished.”*  Chances of recusal motions being filed from criminal defendants if Butler had won: zero point zero.)

In fact, just a year later, Chief Justice Shirley Abrahamson ran her own campaign, having clearly learned the lessons of modern judicial campaigns.  Abrahamson’s television ads featured Dane County Sheriff Dave Mahoney driving around in his squad car, informing the viewer of Abrahamson’s work “protecting Wisconsin families.”  While much more vague than Gableman’s appeal, it was clearly meant to send a similar message: Shirley’s on the side of law enforcement.  (See the ad here.)

However, nobody seems to care what legally intemperate statements Abrahamson made during her campaign – including her claim that she’s “helping homeowners work out solutions to home foreclosure” and “protecting consumers from abuse.”  One would imagine any bank or business interest appearing before the Court might object to Abrahamson’s depiction of their industry as predatory.  (Furthermore, even ex-gubernatorial candidate Barb Lawton – BARB LAWTON!has pointed out that a quarter of Abrahamson’s donors will come before the court in some fashion.  If you’re a lefty and Barb Lawton calls you out, you have done something historically objectionable.**)

Yet it’s the Gableman campaign’s TV ads that are now keeping defense attorneys up late at night, filing motions for him to recuse himself in criminal cases.  Such was the case last week when Assistant State Public Defender Ellen Henak filed a motion attempting to force Gableman from participating in a case dealing with how sentencing credits are counted in Wisconsin versus other states.  While standing in front of the Court, Henak nailed herself to a cross of fabrication, arguing that the Court was “forcing” her to move ahead with oral arguments against her will.

While the substance of the case is fairly run-of-the-mill procedural stuff, the Court’s public reaction to it has been unprecedented.  The tumult began the week prior to oral arguments, when three of the Court’s liberal justices issued a public statement urging postponement of the case until Gableman’s situation was rectified.  This is the first time many long-time Court observers can remember justices serving as their own press secretaries and discussing a case openly before it even hits their chamber.  Three conservative justices then responded via the media themselves, saying Gableman’s case before a three-member panel has been taking too long.

Of course, Gableman took part in the oral arguments for the case last week.  He simply has no choice – if he recuses himself from a criminal case just once, then defense attorneys across the state will smell blood in the water and grab hold of that loophole as long as he’s on the court.  The legal toothpaste will then be out of the tube.  In fact, it is rumored that some notable defense attorneys are already urging criminals to automatically file recusal requests as soon as their case gets to the Supreme Court, simply to tighten Gableman’s briefs (so to speak).

In the mean time, all the usual suspects arguing for public funding of Court elections have been coming out of the woodwork, saying that all this unrest is somehow the result of too much money in Supreme Court elections.  In fact, this argument has exactly nothing to do with the Court’s current conundrum.  Gableman’s ad was run by the candidate himself, not the “shady” third parties that taxpayer financed elections are supposed to thwart.  If Gableman had been handed a $200,000 check by the taxpayers of Wisconsin, he likely would have run the same ad.  Abrahamson would probably have used the money to continue to paint herself as tough on crime.  Using the Gableman brouhaha to argue for public financing is like a doctor removing your pancreas if you’re complaining of an ear ache.

So it is clear that politics has taken hold of the Wisconsin Supreme Court.  But it has nothing to do with elections.  Instead, it has to do with the desire of three of the Court’s justices to nullify the results of a popular election when it comes to criminal matters before the court.  And there’s no amount of campaign finance reform that can undo the desire of individual justices to politicize the institution by trumping up phony ethics charges.

***

*-Butler’s harsh “anti-robbing people” stance clearly lost him the much-sought-after “Flamboyant French Safe Cracker” demographic.

**-Lawton also claims that special interests spent less on the Abrahamson/Koschnick race than the Butler/Gableman race because of the “diminishing of the stature of the court.”  This is Olympic-level goofballery.  Special interests spent less because Abrahamson has been on the Court for 30 years, and her race with Koschnick was never close.

In other news, WPRI has obtained a behind-the-scenes video of the justices settling their battle behind closed doors:

It All Comes Back to Campaign Finance

I really, sincerely, hadn’t planned on writing a lot about the current Supreme Court race in Wisconsin.  But the stench has just gotten too thick – I can’t help but comment.  I’m like one of those idiot criminals who shows up at the police station because they offer a free honey ham, then gets arrested.  I just can’t help but get suckered in.

The other day, I wrote that because liberal Chief Justice Shirley Abrahamson was in the lead, you weren’t hearing all the calls for campaign finance reform that you normally would if a conservative were running strong.  It appears I may have spoken a bit too soon, as I underestimated the ability of the Eau Claire Leader-Telegram to twist the story to their liking.  This appeared on the same day as my post:

At a forum addressing judicial campaign financing in Eau Claire last week, Wisconsin Democracy Campaign Director Mike McCabe pointed out the similarities in education (the same law school), professional experience (circuit court judges) and legal temperament (self-described “judicial conservatives”) between Koschnick and Gableman. Yet Gableman was able to defeat an incumbent Supreme Court justice last year while Koschnick is considered a long shot this year.

McCabe says the likely difference in electoral outcome has to do with dollar signs, and it’s hard to disagree with him.

Yes – who could disagree with such air-tight logic?

Or, it could be the fact that Shirley Abrahamson has spent 30 years on the court, as opposed to Louis Butler’s 10 minutes.  Perhaps they forgot that Butler had lost an election (to Diane Sykes), but was then installed on the court by Governor Doyle when a vacancy opened up – essentially overturning the results of the election.  Sometimes voters bristle at being told they’re not smart enough to pick their judges.  Regardless, I think the fact that Shirley Abrahamson has become an institution in Wisconsin government might have just a little to do with her electoral strength.

Furthermore, it was because of the Butler/Gableman race that Abrahamson switched tactics, portraying herself as “tough on crime,” and “protecting our families.”  This was a lesson Butler was slow to learn – and it may have cost him his seat.  Abrahamson immediately recognized that her left flank was exposed on the crime issue, and tried to fortify it up front.  (A year ago, I suggested she release a video of her chasing down and clubbing a burglar in her campaign commercials – oddly, my advice went unheeded.)

In fact, the goo-goos have it exactly backward.  They believe Koschnick is a longshot because he had trouble raising money.  In reality, it’s the other way around – Koschnick had trouble raising money because he’s perceived by conservatives as a longshot.  And this isn’t because he’s a bad guy or a terrible judge – the groups that normally help conservative judges didn’t think he had a legitimate shot at beating a Supreme Court justice that joined the bench before man had invented utensils.

But this displays the desperation of the campaign finance reform crowd – when there’s a race where the candidates spend too much, money is the problem.  When there’s a campaign where candidates spend too little, money is the problem.  They seem to think they’ve got it surrounded – when in fact, there are a hundred things that explain what’s happening more clearly than merely campaign finance.

Might Want to Call the GAB, Shirley

Last Friday night, the NCAA Sweet 16 was in full swing.  Those sitting at home were treated to a thrilling game, as Michigan State was able to beat Kansas, on their way eventually to the Final Four.  If you were one of the three people watching the “We the People” Supreme Court candidates debate that night, my apologies.  Not because you missed the game, but because you were probably chained up in someone’s basement and being forced to watch in order to extract information from you.  If you called for “more waterboarding” in exchange for not having to watch Shirley Abrahamson debate Randy Koschnick, it would be entirely understood.

However, the debate did contain one interesting exchange.  At one point, Koschnick called on Abrahamson to condemn the ads being run against him by the Greater Wisconsin Committee, a third-party entity that supports the Chief Justice.  Koschnick urged the ads to be removed from the air, as they contained “false” and “inflammatory” information.  (Ed. note – there is nothing in the ad that even approaches a reason for it to be taken down.)  

Abrahamson bristled at the suggestion, citing Koschnick’s own words, when he said

“I think the answer to the problem of offensive or troublesome speech is more speech.  If somebody has said something that is not true or inaccurate, the answer, rather than trying to suppress that speech, is to allow candidates and others to come out with a response and put the truth out there and let the public decide.”  

Then, on her own, Abrahamson punctuated the quote with her own “more speech.”  In her answer in response to the next question, the Chief Justice again hectored Koschnick for wanting to “stop speech.”

Well.

Of course, Abrahamson has long been a supporter of public financing of judicial elections – which, of course, is an attempt to “stop speech” by limiting the amount of money spent on campaigns for the Supreme Court.  Naturally, Abrahamson didn’t feel strongly enough about the corrupting force of campaign contributions to limit them in her own campaign, as a Wispolitics.com report out yesterday showed she has outspent Koschnick at a 19-to-1 rate.  In the most recent fundraising period, Abrahamson raised $290,000, in contrast with Koschnick’s $70,000.  Suddenly, a Chief Justice who has been hostile to the corrupting force of money (and the speech that comes with it) has turned into Antonin Scalia when her own campaign needs the boost.

In the likely event she wins, this newly discovered defender of free speech rights might want to pick up a newspaper to observe the First Amendment vandalism being perpetrated by the Wisconsin Government Accountability Board, who has introduced a rule granting themselves the sole authority to regulate political speech during elections.  As such, it will be an unelected board of bureaucrats – not even elected officials – who will be the “speech police” come campaign time, determing what can and can’t be said during the course of elections.

When I was a kid, one of the most popular t-shirts around declared the wearer of the shirt to be “FBI” – “Female Body Inspector.”  The power the GAB has granted itself is akin to declaring yourself the state’s authority on the female form – and should be about as legally as binding.  In fact, the GAB has inspired me, and today I declare myself the state’s sole arbiter of who can wear spandex in public.  I’ll send my phony rule over to the the Legislature pronto.

It is almost certain that the GAB’s not-constitutional-by-a-longshot-free-speech-suppression-rule is going to end up in front of Abrahamson’s Court in the near future.  Let’s just hope she’s “Campaign Shirley, Defender of Vigorous Public Debate,” and not “Too Many Conservatives Are Getting Elected, So We Need to Fund Campaigns With Taxpayer Dollars” Shirley.

Side note:  During the Gableman-Ziegler races, you couldn’t open a state newspaper editorial page without reading about the need for reforming judicial campaign financing – now, with Abrahamson comfortably in the lead, you hear… nothing.  Crickets.


Can You Spot What’s Missing?

From the Appleton Post Crescent Website, via USA Today:

Wis. court race pits the chief vs. a conservative

MADISON, Wis. – Chief Justice Shirley Abrahamson is trying to turn back a challenge from a self-described conservative to win a fourth 10-year term on the Wisconsin Supreme Court.

A victory would put Abrahamson — appointed to the court in 1976 — on the way to becoming the longest serving justice in state history. A loss to Jefferson County Circuit Court Judge Randy Koschnick would tip the seven-member court further to the right and mark the third straight triumph of a judge running as a conservative.

The two are competing for a 10-year term in the April 7 election. With a well-known name, more experience and a huge financial advantage, Abrahamson is heavily favored. She also has history on her side: Only two incumbent justices have been defeated in the last 42 years.

From this article, we learn two important things:

1.  Randy Koschnick describes himself as a conservative.

2.  Shirley Abrahamson describes herself as the Chief Justice of the Wisconsin Supreme Court.

The article does point out that Abrahamson is “considered” to be one of the “more liberal” members of the Supreme Court, but also says she rejects that label.  As we have come to find out in the past three judicial elections, the public tends to favor conservatives for the Supreme Court, even in years when Republicans have been losing races by the boatloads.

So it appears the headline writer did Abrahamson a big favor by concealing her judicial philosophy.  But it’s nice that you can now be solely identified by whatever trait you think is most flattering.  If I ran against Russ Feingold, for instance, I’m sure the headline would read:

“Long Time U.S. Senator Faces Man Who Can Do 25 Push-ups With Only One Break Inbetween.”

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.

Makin’ Laws, Takin’ Names

Today, the U.S. Eastern District Court of Wisconsin struck down the state’s “minimum markup” law, which generally required gas stations to mark gasoline up 9.18% over the price paid at the pump.  Last year, I issued a report that argued the law kept gas prices artificially high for consumers.  (And for which I was called a “boob” on a Janesville radio station by a gas station owner.  He may be right, but it wasn’t because of this report.)

As it turns out, my study was cited in the decision written by Judge Rudolph Randa.  Take a look:

Similarly, the Wisconsin Policy Research Institute analyzed data which suggested that “the law has indeed kept gasoline prices higher than would otherwise be the case.” The Institute concluded that the Act “benefits retail gas station owners at the expense of consumers and should be repealed.” (D. 35-5 at 7). The State fails to contradict or undermine this evidence. In other words, the State confusingly argues in favor of a rule of reason but then fails to argue why the Act is a reasonable restraint.

Naturally, I believe the ruling to be correct and a good deal for consumers.  And the fact that my words showed up in this important ruling is definitely going on the resume.  Right next to “excels at eating with chopsticks.”

CORRECTION:  It appears a commenter has it right, and I spoke too soon.  The citation is that of our 1998 WPRI report, not my study of last year.  I had four people e-mail me, congratulating me for being in the ruling, and the actual citation was not available in the decision, which was all that was online.  I just assumed that since my report said the same thing almost verbatim, that it was me.  In any event, good for WPRI.

Wisconsin\’s Spiraling Retiree Health Costs

Imagine you\’re a young guy who has just started dating the girl of your dreams.  You get around to the discussion of how many people she has \”been with.\”  She says \”two.\”  (That\’s what girls always say, usually accompanied by an extensive story about how she dated some guy for years.)

Now imagine there was a Girlfriend Registration Service, where prospective girlfriends had to report their past exploits.  Everything is on there – the Spring Break trip to Cancun and everything.  When you go look up the new love of your life, you find out her number isn\’t two – it\’s 34.

Fortunately, for us, there\’s a Girlfriend Registration Service for local governments – called the Government Accounting Standards Board (GASB).  A few years ago, GASB began requiring local governments start reporting the amount of health care costs they owe to retirees in the future.  Previously, governments just paid these costs on a year-to-year basis.  But now, they have begun reporting their future unfunded liabilities – and in many cases, they are stunning.

Today, the Wisconsin Policy Research Institute released a report detailing local government postemployment liabilities. A review of financial documents reveals that the Wisconsin governments required to report their liabilities carry nearly $6 billion in future retiree health care costs. Of this amount, the largest three liabilities are carried by governments in the Milwaukee area: the Milwaukee Public School (MPS) district at $2.2 billion, Milwaukee County at $1.5 billion, and the City of Milwaukee at $806.3 million.  In many cases, these liabilities dwarf the annual budgets of these governments (for instance, the MPS budget is $1.2 billion, while their liability is $2.2 billion.)

Taxpayers are wondering why they pay more and more in taxes, yet see little direct benefit.  This may be a reason why – a growing chunk of the taxes they pay go to people who don\’t even workfor the government anymore.

Wisconsin’s Spiraling Retiree Health Costs

Imagine you’re a young guy who has just started dating the girl of your dreams.  You get around to the discussion of how many people she has “been with.”  She says “two.”  (That’s what girls always say, usually accompanied by an extensive story about how she dated some guy for years.)

Now imagine there was a Girlfriend Registration Service, where prospective girlfriends had to report their past exploits.  Everything is on there – the Spring Break trip to Cancun and everything.  When you go look up the new love of your life, you find out her number isn’t two – it’s 34.

Fortunately, for us, there’s a Girlfriend Registration Service for local governments – called the Government Accounting Standards Board (GASB).  A few years ago, GASB began requiring local governments start reporting the amount of health care costs they owe to retirees in the future.  Previously, governments just paid these costs on a year-to-year basis.  But now, they have begun reporting their future unfunded liabilities – and in many cases, they are stunning.

Today, the Wisconsin Policy Research Institute released a report detailing local government postemployment liabilities. A review of financial documents reveals that the Wisconsin governments required to report their liabilities carry nearly $6 billion in future retiree health care costs. Of this amount, the largest three liabilities are carried by governments in the Milwaukee area: the Milwaukee Public School (MPS) district at $2.2 billion, Milwaukee County at $1.5 billion, and the City of Milwaukee at $806.3 million.  In many cases, these liabilities dwarf the annual budgets of these governments (for instance, the MPS budget is $1.2 billion, while their liability is $2.2 billion.)

Taxpayers are wondering why they pay more and more in taxes, yet see little direct benefit.  This may be a reason why – a growing chunk of the taxes they pay go to people who don’t even workfor the government anymore.

More Women Mad at Me

It appears I have kept my decades-long streak of displeasing the ladies alive.

Today, the League of Women Voters issued a release critical of my column of last week, where I argue that trying to make legislative districts \”electorally competitive\” actually gives Assembly Democrats an eight-seat head start come election time. Otherwise, African-American votes are diluted and civil rights litigation hilarity ensues. In effect, this gives Democrats an eight seat \”handicap,\” a golf metaphor that appears to be lost on Andrea Kaminski, the author of the LWV release.

In their release, the LWV argues… well… actually, I\’m not exactly sure what they\’re arguing. Their main talking point seems to be that I don\’t have anything to write about. They\’re probably right in that respect. Maybe we can set up a public debate where we argue the merits of my workload. Other than that, they don\’t seem to make any point that refutes anything I said in the column. For the sake of clarity, let me boil it down:

  • When you make electoral competitiveness a standard for legislative redistricting, it is impossible to make inner-city districts competitive. Doing so would require diluting the African-American vote, a strategy of segregationists.
  • As a result, there are at least eight Assembly districts (and at least two Senate districts) that will be exempt from the competitiveness standard. This gives Democrats an eight-seat head start in legislative elections.

Ms. Kaminski reiterates her support for having an \”independent\” board drawing district lines, since the Legislature can\’t be trusted to do so. In fact, the courts actually set the boundaries every decade. The Legislature generally writes their plan, then it goes to court, where judges eventually draw the lines. It has been this way in every redistricting since at least 1974.

In any event, I am honored to now be Public Enemy #1 over at the League of Women Voters. They are welcome to get in line – it forms on the left.

Thoughts on Richards

Today the Wisconsin Supreme Court released its decision in Michelle Richards v. Badger Mutual Insurance, an interesting case that attempts to discern joint and several liability in a drunk driving death. From Justice Roggensack\’s decision:

An ill-conceived idea between teenagers to \”get some beer\” one evening culminated in tragedy the next morning when an intoxicated Robert Zimmerlee, 19, failed to stop for a stop sign and smashed into the driver\’s side of Christopher Richards\’ vehicle, killing him instantly.

Actually Roggensack erred in this respect: the plan to get some beer didn\’t seem ill-conceived – in fact, it seemed very successful.

After procuring the beer from an over-21 year-old female friend, the two boys dropped her off at the bus stop and went to a party. (You\’d think they\’d give her a ride home after she did them such a big favor.) The beer party was held at Jennifer Spencer\’s house, which means that more 19 year-olds will begin reading Supreme Court opinions to find out where all the best parties are.

The decision essentially decides whether the driver of the car (Zimmerlee), the passenger in the car (David Schrimpf) and the purchaser of the beer (Tomakia Pratchet) are all joint and severally liable for the tragedy that befell Chris Richards when he was killed in the car crash. If they are joint and severally liable, they would be forced to pay a greater portion of the judgment in favor of Richards. Richards\’ family argues that the purchasing and drinking of the beer all represent a chain events for which Schrimpf is also liable, while the defendants\’ insurance company says there was no common scheme or plan to drink and drive, only to purchase the beer in the first place. Naturally, the Wisconsin Academy of Trial Lawyers filed an amicus brief on behalf of the plaintiff.

The court decided in favor of the insurance company – saying that while the joint and several liability statute is ambiguous, legislative intent and prior caselaw set a high standard for a \”common scheme or plan\” to prove joint and several liability. (Interestingly, the Court cites the Collins case, which was cited by Justice Louis Butler in his famous decision to hold lead paint companies liable for lead poisoning. Same case, two different philosophies on liability.)

From the decision, Paragraph 51:

In regard to the actions of Zimmerlee, Schrimpf, and Pratchet, it is undisputed that they agreed to purchase beer. When Schrimpf asked Pratchet to purchase beer and Zimmerlee drove her to the grocery and gave her the money that she used to purchase the beer, they acted \”in accordance with a common scheme or plan.\” Their procurement of beer was tortious. Wis. Stat. §§ 125.035(4)(b); 125.07(1). However, after that purchase, Pratchet had nothing further to do with the beer. She took a bus to an unnamed location. Zimmerlee and Schrimpf became parallel actors. Zimmerlee and Schrimpf separated, with Zimmerlee keeping the beer in his car. The scheme or plan that was common to these three defendants had been completed. Richards had suffered no damages because of actions taken to further that common plan. Something more was required. Therefore, the purchase of beer is insufficient to show concerted action, and to cause Schrimpf\’s conduct to fall within Wis. Stat. § 895.045(2).

With Justice Crooks shifting over to side with the current three conservatives on the Court, this decision is a defeat for trial lawyers, who stood to benefit from higher payments by the defendants. It is always in WATL\’s interest to be able to cast as wide a net as possible – the more chances there are to sue, the increased chances there are that a \”deep pocket\” is somewhere in the net.

With sympathies to Chris Richards\’ family, I believe this is a good decision. Yes, buying them beer is a crime. Yes, being drunk and in the car with Zimmerlee makes Schrimpf partially liable. But I have never favored laws such as the \”Len Bias Law\” (which penalizes drug dealers more severely if one of their customers dies as a result of overdosing on the drugs provided), as one should have a reasonable expectation of what their punishment will be given their criminal act. (Although I recognize that\’s a criminal statute, while this is a civil case.)

Just as in the case of a drug dealer, once the beer left the hands of Tomakia Pratchet, she shouldn\’t be held liable for what the drunk teenagers do with it after drinking it. She committed a crime, and should be punished for it according to the statutory guidelines for providing alcohol to a minor – her sanction shouldn\’t be determined by the two knuckleheads that then get drunk and run someone down. This would be like holding a baseball bat manufacturer liable if one of their customers purchased a bat and beat someone to death with it.

Supporters of a more \”flexible\” reading of the law might charge that this case is \”conservative judicial activism,\” as the Court took an ambiguous statute and interpreted it to mean what they wanted it to mean. First, they charge that in every case with a conservative outcome. Second, the criteria the majority uses in formulating their argument are legitimate – trying to figure out what the statute meant to the Legislature at the time it was written, and by prior case law. That won\’t satisfy conservative critics, but they are the most solid criteria in ascertaining the meaning of a statute, something the Court has to do regularly.

SIDE NOTE: I am well aware that joint and several liability is a complex industry unto itself, and that these issues are simplified greatly in this post. Also, I have been told that since I am not an attorney, I cannot use the term \”Supra.\”

From My Keyboard to God\’s Ears

Yesterday, the U.S. Supreme Court held arguments on the so-called \”Millionaire\’s Amendment\” section of the McCain-Feingold campaign finance law. The provision in question limits how much a candidate can spend on their own campaign, presumably to prevent them from being corrupted by… their own money.

During oral arguments, Justice Scalia ridiculed the notion that laws can somehow \”level the playing field\” for campaigns. Scalia sarcastically suggested we should next require that the more eloquent candidate talk with pebbles in his mouth, in order to guarantee more egalitarian elections.

If that sounds familiar, it\’s because I made a very similar point in a column early this year. To wit:

For instance, we need to eliminate Barack Obama\’s good looks from the equation. From now on, Obama should be forced to wear a ridiculous, bushy fake mustache when he gives speeches. We\’ll see if women voters are as enthusiastic about his message of hope when he looks like Borat. (Although, admittedly, he might earn my vote if he did so.)

Next, we need to equalize the market for celebrity endorsements. When Chuck Norris endorses Mike Huckabee, every other candidate in the field will be assigned a taxpayer-financed washed-up action star to serve as their campaign spokesman. Jean-Claude Van Damme, we need your cell phone number – looks like John Edwards is cratering!

Under my plan, candidates will be barred from playing instruments while on the campaign trail. Everyone remembers Bill Clinton\’s thrust in popularity after he played the saxophone on late night television. Mike Huckabee recently showed up on Jay Leno playing the bass guitar. (Less memorable was Steve Forbes\’ performance of Black Sabbath\’s \”Paranoid\” on the triangle.) Whether a candidate can play a few notes on an instrument doesn\’t tell me what I need to know about their position on CAFTA.

Finally, we need to get rid of all these troublesome catchwords that seem to be getting people so excited. Obama should be limited to two uses of the word \”hope\” per speech. Huckabee should only be allowed to refer to God as \”the man who lives in the clouds,\” and will be limited to using the following joke, written by my four year-old daughter:

Q: \”What did the fish say to the seaweed?\”

A: \”Fish can\’t talk!\”

All of these important reforms will give real people a chance to run for office. Real ugly, dull, uninformed people.

So since I don\’t expect anyone else to toot my horn, I will take this opportunity to do it myself. Or, at least before Wisconsin amends its Constitution to ban tooting your own horn.

From My Keyboard to God’s Ears

Yesterday, the U.S. Supreme Court held arguments on the so-called “Millionaire’s Amendment” section of the McCain-Feingold campaign finance law. The provision in question limits how much a candidate can spend on their own campaign, presumably to prevent them from being corrupted by… their own money.

During oral arguments, Justice Scalia ridiculed the notion that laws can somehow “level the playing field” for campaigns. Scalia sarcastically suggested we should next require that the more eloquent candidate talk with pebbles in his mouth, in order to guarantee more egalitarian elections.

If that sounds familiar, it’s because I made a very similar point in a column early this year. To wit:

For instance, we need to eliminate Barack Obama’s good looks from the equation. From now on, Obama should be forced to wear a ridiculous, bushy fake mustache when he gives speeches. We’ll see if women voters are as enthusiastic about his message of hope when he looks like Borat. (Although, admittedly, he might earn my vote if he did so.)

Next, we need to equalize the market for celebrity endorsements. When Chuck Norris endorses Mike Huckabee, every other candidate in the field will be assigned a taxpayer-financed washed-up action star to serve as their campaign spokesman. Jean-Claude Van Damme, we need your cell phone number – looks like John Edwards is cratering!

Under my plan, candidates will be barred from playing instruments while on the campaign trail. Everyone remembers Bill Clinton’s thrust in popularity after he played the saxophone on late night television. Mike Huckabee recently showed up on Jay Leno playing the bass guitar. (Less memorable was Steve Forbes’ performance of Black Sabbath’s “Paranoid” on the triangle.) Whether a candidate can play a few notes on an instrument doesn’t tell me what I need to know about their position on CAFTA.

Finally, we need to get rid of all these troublesome catchwords that seem to be getting people so excited. Obama should be limited to two uses of the word “hope” per speech. Huckabee should only be allowed to refer to God as “the man who lives in the clouds,” and will be limited to using the following joke, written by my four year-old daughter:

Q: “What did the fish say to the seaweed?”

A: “Fish can’t talk!”

All of these important reforms will give real people a chance to run for office. Real ugly, dull, uninformed people.

So since I don’t expect anyone else to toot my horn, I will take this opportunity to do it myself. Or, at least before Wisconsin amends its Constitution to ban tooting your own horn.

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