Wednesday, June 29, 2011

Our combative court

The indispensable Christian Schneider has pulled together some of the conflicting accounts of the Incident at our state Supreme Court. This suggests a few things.

1. It may well be that we are probably never going to know what really happened. As is often the case with shocking events that occur quickly, we have conflicting accounts. These are probably the result, not of deliberate falsification, but of confirmation bias. Where the opportunity to observe is limited by the rapidity and surprise of events, eye witnesses will often see what they want or expected to see. There seems to be little in the way of objective indicia of what happened, other than (perhaps) Justice Bradley's suggestion that she was not choked because the two were broken apart and her own choice not to file a police report. Apart from that, it may turn out that there is no way to distinguish one version of events from the other.

2. One unfortunate denouement is that, if the local authorities can't prosecute (and it seems highly unlikely that they can), then the matter will ultimately come back to the Court. How will that work? Do the participants and witnesses recuse themselves, placing the entire matter with Justice Crooks? Not a very appetizing prospect for him and placing the matter with a single member of the Court is probably not the best way to resolve something like this.

3. Sadly, this is not just about David Prosser. If, in fact, Justice Bradley charged Justice Prosser with her fists raised or went "nose to nose" with him, this also raises issues about judicial temperment and anger management. Of course, "a chokehold" would be a disproportionate response. I'd like to think that neither of them is guilty of actions that arise to the level of assault or disorderly conduct and that an ugly moment has been blown out of proportion. It's not what I would expect from either of them, but we'll see.

5. Nor is it just about David Prosser and Ann Walsh Bradley. This incident doesn't come from nowhere and it doesn't just come from the combative elections we have had since 2007. The origins extend past that and the solution will have to acknowledge this. The culture on the court needs to change. Strong differences of opinion are inevitable, but disputation ought to be kept between the white lines. When strong differences of opinion do arise, individuals ought to try and refrain from ridiculing and questioning the impartiality of their colleagues. Differences on matters of law should not be needlessly magnified into existential confrontations.
The voices of dissenters should not be ignored, but individuals should refrain from using manipulating the court's processes and customs to frustrate the will of the majority. Individuals ougnt to avoid fighting battles against their colleagues in the press. Administrative matters should not be a place for continuing ideological battles.

I don't presume to lay the blame for this at anyone's feet or with any wing of the Court nor do I intend any veiled criticism. I have no interest in arguing about who has or has not been "guilty" of contrubuting to the present state of affairs. I just hope for better. If responsibility for the problem is diffuse, then perhaps commitment to improvement can be broad.

Sunday, June 26, 2011

Sad Days at the Wisconsin Supreme Court

A few months ago, I was talking to a reporter at Reuters who asked "what's going to happen next with you people in Wisconsin?" I told him that I had no idea but it would probably be some bizarre thing that no one saw coming. The next day Kathy Nickolaus had a press conference.

And now it happens again with our embattled Supreme Court. What a mess.

Let's clear away the obvious. The idea of David Prosser strangling Ann Walsh Bradley seems fantastical. But I wasn't there and if Justice Prosser did assault Justice Bradley - "put her in a chokehold" as the allegation has it, he should resign. However, it is equally the case that if Justice Bradley assaulted Justice Prosser - "charged him with raised fists" as the allegation has it (also a bit hard to picture), she should resign. Whether criminal charges should be issued is, of course, another matter and depends on how serious the altercation was. My guess is that - even if something untoward happened - it doesn't rise to the level that would normally result in prosecution.

But, of course, it's not clear that either one of them did what is alleged. The initial report by Bill Lueders was an embarrassingly bad piece of work. Deciding what happened will require resolving conflicting accounts and that resolving them will involve taking testimony from members of the Court other than just Justices Prosser and Bradley. That, for a variety of reasons, is going to make handling any potential disciplinary or criminal proceedings a nightmare. If there are conflicting versions corresponding to ideological stances, God help us all. Addressing that in the context of our politically charged environment in a way that does not become yet another major fissure in out state seems impossible.


But there are other threats to the institution. Lawyers have been worried about the divisions on the Court for some time now. It's one thing to disagree, but disagreement ought not to undermine civility and respect. No one likes to say too much about it in public for fear of alienating the people who may decide their clients' matters. I include myself among this reluctant group.

Someone - maybe more than some one - needs to step up and lead. Leadership requires more than scoring debating points and calling out your colleagues' character and bona fides. Substantive differences among members of the Court are real and important, but they are not unprecedented and are not existential. The damage being done to the Court as an institution may be.

It easy for us on the outside to think we know who is at fault. It is easy for us to think the matter is somehow resolved by a call to just "get along." The fact is that, like a damaged marriage, relationships within a collegial body can ultimately be repaired only by the members of that body. I don't pretend to know what that will take. I do hope that there will be some serious soul searching among members of the Court.

Wednesday, June 15, 2011

Inital Thoughts on Yesterday's Decision

Regarding State ex rel: Huebsch v. Circuit Court for Dane County

1. For reasons that I have stated on many occasions, this was not a hard case. Controlling precedent clearly prohibited an injunction against publication of a statute and nothing about the passage of the open meetings law changed that. There was not, as some have suggested, two lines of authority about the impropriety of invalidating an act of the legislature for failure to comply with a procedural review. Stitt controls on that question and nothing about the open meetings law or the Court's decision in Milwaukee Journal Sentinel changes that. The majority was not wrong, as some have suggested, in framing the issue as whether the passage of the open meetings law could amend (by adding to) Art. IV,sec. 10 of the state Constitution. The argument that the law has a "constitutional nexus" or is somehow the implementation of a constitutional provision tees that issue up. If - as everyone seems to agree - Art. IV, sec. 10 does not itself impose any requirements on the legislature that were violated here, then arguing that the legislature is bound by something with a "nexus" - a sort-of-kind-of-but-not-quite-constitutional command is tantamount to a sub silentio amendment of the constitution. Rather than construct a straw house, the majority went directly to an issue that, quite frankly, the District Attorney and Judge Sumi obscured with imprecise language. That issue was at the heart of the matter. I could go on but you get the point.

2. No Justice voted to affirm Judge Sumi. Those who dissented in part wanted to take more time and, in a certain way, that's understandable. Law developing courts of last resort deal with biq questions and are used to act - quite properly - with a certain leisure that facilitates measured and thorough analysis.

But turbulent times can present extraordinary circumstances. To take more time here would have been to decide the case in favor of one party. The other two branches of government would have run out of time. To say that the legislature could just repass the bill and have the Governor resign it is not an answer. Co-equal branches of government are entitled - the people are entitled - to have their constitutional prerogatives respected. It is unfortunate that circumstances required expedited review, but it's not the first time that has happened and it won't be the last.

It certainly is true that the Court normally accepts jurisdiction and then proceeds. But the issues in the case were, by the Court's order, fully briefed and thoroughly argued. (I thought about filing an amicus brief in the case but concluded that there was really nothing more to be said.)

The real question is what would have been better had the Court waited. I'm not sure and I don't see an answer in the writings of the those Justices who dissented in part. I don't know, for example, that access to the entire record below would have made a difference because it's unclear that there are any material factual issues. One quickly gets into legal inside baseball but I think Justice Prosser is right. The case wouldn't have looked any different in the fall.

3. I do not think that criticism of the majority's writings as poorly done is fair at all. I think it is particularly unfair and unfortunate that anyone should suggest that one can somehow infer a "results oriented" approach from the Justices' writing. Personally, I find the majority's writings to be more compelling but I certainly would never impugn the minority's intention because I don't agree with or find fault with their analysis.

4. Doug LaFollette is not at sea in the way that he thinks he is. I think the majority is wrong about the law not being in effect and, if it is not in effect, was wrong in the reason that it gave. Publication in the official state newspaper seems quite clearly not to be the thing that makes it effective. But LaFollette is obligated to publish within ten days of the publication by the LRB which occurred on March 25. What he must now do is arrange for publication as soon as possible.

Shark on the Air

I will be on Charlie Sykes show at 8:45 to discuss the Supreme Court's decision yesterday. I'll post something later.

Wednesday, June 08, 2011

Sometimes Art is just art

I have do not know John Gurda but have always admired his work on the history of Milwaukee. I have all of his books and enjoy his monrhly columns in the Milwaukee Journal Sentinel even as they have become increasingly political. He clearly leans left but I've never been one to think that having and expressing political views undermines one's professional or academic work. In areas that are politically fraught (and both public law and history are), people who claim to pronounce from the Olympian Heights are often fooling themselves.

So I offer the following with some measure of sympathy. In his Sunday column, Gurda recites a bit of Wisconsin's abolitionist history and then calls for an end to our current civil war in which, he says, "confrontation has trumped compromise and ideology has overwhelmed practicality."

A bit over the top, I suppose, but there is a point to be made. I've called Wisconsin "the bloody Kansas" of our current political divide, although I do so with some irony. I think the Left's response to Scott Walker is hysterical and detached from reality. But we could all do well to dial it down a bit.

But I'd take Gurda a bit more seriously if he hadn't - in the same issue of the paper - allowed his own ideology to overcome common sense. He calls it tone deaf and "breathtaking." Taking down David Lenz' "Wishes in the Wind" is hardly tantamount to removing the Mona Lisa from the Louvre. The painting is OK but it's hardly a masterwork. It evokes a kind of Sesame Street urbanism - possibly because anything else would be too edgy for the Governor;s Mansion. It is in a realistic style that some would argue is tantamount to photography and unappealing.

In any event, choosing a work that emphasizes a different theme is hardly evidence of animosity toward children or the poor. Promoting the view that removing a painting is a politically divisive act is itself a triumph of ideology. I understand that we boomers once thought that the personal is the political. It was a bad idea then. It still is.