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Anyone needing proof of my contention that Wisconsin conservatives ought to back Van Mobley for DPI superintendent need look no further than today’s Appleton Post-Crescent story on the race:

Three candidates — current deputy Tony Evers, Beloit Supt. Lowell Holtz and National-Louis University professor Todd Price — agree that the so-called “qualified economic offer” needs to be repealed.
Only one candidate, Concordia University professor and longtime Republican Party operative Van Mobley, opposes repealing the QEO. The fifth candidate, Wisconsin Coalition of Virtual School Families president Rose Fernandez, said she wasn’t prepared to take a position on it.
In place since 1993, the QEO has effectively capped teacher raises by precluding teachers’ unions from going to arbitration as long as they are offered 3.8 percent increases in salary and benefits.
Critics say the QEO has held down teacher salaries because most of the increase is eaten up by benefits. Some supporters of repealing the law, including Democratic Gov. Jim Doyle, are wary about allowing schools to exceed revenue caps, which limit how much they can collect from property taxes and in state aid.
Without increases in aid from the state, schools likely would have to make cuts to afford the higher teacher salaries or be forced to ask voters for more money from property taxes.
Mobley said, given the recession, this is not a good time to remove the QEO or revenue limits.
“We’re all in the same economic crisis together,” he said.
The powerful teachers’ union, which has yet to make an endorsement in the race, supports repeal of the QEO and opposes revenue limits.

With a five-way race, making the top two slots is anyone’s ball game.

“An O’Scannlain dissent from the denial of en-banc rehearing frequently gets some attention across the country–in Washington, D.C.” Joseph D. Kearney, Introduction of Judge Diarmuid O’Scannlain, 91 Marq. L. Rev. 896, 897 (2008).

Let’s hope that Dean Kearney’s observation turns out true in the particular instance of Barnes-Wallace v. Boy Scouts of America, a federal lawsuit concerning a Scout camp in San Diego. According to the Law.com story, “A pair of couples, one lesbian and another agnostic, challenged a lease the Scouts signed with the city of San Diego allowing them to operate recreational facilities on park land. They said the deal violated the Establishment Clause because of the Scouts’ professed reverence of God. In addition, they said they were averse to using the facilities because of the Scouts’ stated policy of excluding gays and atheists.”

The suit was decided in their favor by a three judge panel. The 2-1 decision included this astounding comparison by Judge Marsha Berzon :

Just as African-Americans could ride on Montgomery’s buses, but not in the front, the Scouts permit plaintiffs to make use of Camp Balboa and the Mission Bay Park Youth Aquatic Center, but do not allow them to be members of their organization and participate in the activities conducted at the camps for members. In either case, use of a valuable public facility is made contingent on acceptance of imposed second-class status within a controlling organization’s social hierarchy.

The particular motion before the court was “a June 2008 order certifying three questions of California state constitutional law to the California Supreme Court.” The Court did not vote to hear the case en banc, and Judge O’Scannlain dissented vigorously on behalf of himself and Judges Jay Bybee, Consuelo Callahan, Carlos Bea, Sandra Ikuta and Andrew Kleinfeld:

Henceforth, a plaintiff who claims to feel offended by the mere thought of associating with people who hold different views has suffered a legally cognizable injury-in-fact. No other circuit has embraced this remarkable innovation, which contradicts nearly three decades of the Supreme Court’s standing jurisprudence. In practical effect, the three-judge panel majority’s unprecedented theory creates a new legal landscape in which almost anyone who is almost offended by almost anything has standing to air his or her displeasure in court.

You can also read reaction from the Boy Scouts’ online legal center.

Law.com reports that the Scouts’ lawyers have given no indication on whether they intend to appeal to the US Supreme Court. Let’s hope that if they do, Judge O’Scannlain’s dissent receives its deserved recognition at the cert. stage.

before leaving for Wisconsin, I had the opportunity to attend a conversation between President George W. Bush and Chris DeMuth of the American Enterprise Institute at the Mayflower Hotel here in D.C. It was a good event, not least because I was seated relatively front and center. Favorite moment from the event:

R. DeMUTH: Thank you. The U.S. is one of the — it’s the only advanced society that doesn’t have comprehensive price controls on pharmaceutical drugs. We have the highest-priced drugs, and we have the highest rate of innovation in life-saving new drugs. We’re moving, clearly, toward increased price controls at the administrative level and in Congress. Pharmaceutical companies are cutting back on their R&D investments. Do you think this trend is inevitable? Do you think that your Medicare Part D reforms will make that problem worse, or by introducing market mechanisms, help be the solution?

THE PRESIDENT: The whole medical debate is headed toward whether or not the government ought to be setting the price of medicine. I believe that we ought to resist that and cause markets to flourish. And we don’t have a real functioning market in health care right now. I’m going to get to the drugs in a minute but — generically [PRESIDENT PAUSES, DANIEL IS ONE OF THREE PEOPLE IN THE ROOM TO LAUGH AT THE PUN] to use a drug term — (laughter [AS EVERYONE ELSE GETS IT]) — that the problem is, is that you’ve got many people’s policies being paid by somebody else and there’s — so therefore there’s no market. People don’t say, well, how much is this costing or what’s the quality of health care with this person or this hospital?

So the consumer — there’s no consumerism. There’s no demand for better price. And so part of the policies I described early were to, like, do health savings accounts or changing the tax codes, all aiming at putting the patient in the midst of the market, getting that person to demand better quality at better price.

Hello friends. Merry Christmas to all of you. One of the highlights of my December, in addition to spending a week with my family back in Wisconsin surrounded by snow, has been posting as a guest on the Marquette Law School faculty blog. I’ve recently posted a draft of a law review article I have coming out in Spring in the Texas Review of Law & Politics. Here’s the abstract:

The mainline Protestant churches are currently undergoing significant internal division over the role of homosexual persons in the Church. The Episcopal Church, in particular, has seen scores of local churches leave the national denomination in the four years since it ordained its first openly gay bishop. The Evangelical Lutheran Church in America will confront these issues at its 2009 Churchwide Assembly, and decisions made there may prompt a similar exodus.

When these churches leave, litigation ensues. The Supreme Court’s First Amendment case law requires the courts to place each denomination in one of several categories based on principles of internal church organization. There are published articles specifically addressing the appropriate legal categorization for Episcopalian, Methodist, Presbyterian, Baptist, and United Church of Christ congregations. The article will fill a major void in this literature by providing legal analysis specific to Lutherans.

The article evaluates legal precedent and theology to categorize the polity of the ELCA as either hierarchical or congregational. While there are arguments both ways, the article concludes that congregational polity is a better fit, especially as to church property.

UPDATE: The other day I came across this essay by Ms. Fernandez on the Journal Sentinel website concerning the virtual schools litigation… Interesting…

The Superintendent of Public Instruction is elected every four years on a statewide basis in the non-partisan spring elections. The current Superintendent, Democrat Elizabeth Burmaster, is not seeking re-election, creating an open seat for April 2009.

Burmaster’s deputy, Dr. Tony Evers, is running for Superintendent as the anointed candidate of the status quo, the bureaucrats, the Democrats, and the teachers unions. Throughout the campaign, he will talk about “great public schools” (WEAC’s slogan) and greater public funding for public schools.

Today, Rose Fernandez announced her candidacy for the post. She is the former president of the Wisconsin Coalition of Virtual School families. Throughout the last several years, she has waged a noble war with the DPI bureaucrats and teachers union on behalf of virtual charter schools with open enrollment statewide. After an unfavorable court ruling, she worked with legislators to craft compromise legislation that kept the schools open for Wisconsin’s kids. A nurse by profession, Mrs. Fernandez runs a small business with her husband, a local firefighter.

The other conservative candidate in the race, who had already announced, is Dr. Van Mobley. He is currently a professor of history and economics and director of governmental & community relations at Concordia University Wisconsin in Mequon and a trustee of the Village of Thiensville. He holds his Ph.D. in political science from the University of Wisconsin. I know Dr. Mobley personally through our mutual involvement in the Republican Party of Ozaukee County.

Kind of floating out there without a constituency that I can discern is the superintendent of the Beloit Public Schools, Lowell Holtz. He longtime administrator and former high school principal.

Tony Evers can be beat: he lost in 1993 to John Benson and 2001 to Libby Burmaster. I hope conservatives will join me in rallying behind Dr. Van Mobley, whose experience in the classroom and as an administrator makes him our strongest candidate for this open seat.

Continuing our series (one, two, three)… Here’s a post to prove that judicial philosophy has practical consequences for who goes free and who goes to jail:

Professor Jason J. Czarnezki of Vermont Law School, and formerly of Marquette University Law School, is no right-wing hack. A student of Barack Obama at the University of Chicago, Czarnezki teaches environmental law courses. He has volunteered for People for the American Way’s Election Protection Coalition and the Sierra Club Environmental Voter Campaign.

Several years ago, Professor Czarnezki published a law review article (87 Marquette Law Review 323 - 2003) looking at empirical evidence regarding strategic voting by Wisconsin Supreme Court justices in advance of election years. In his research, he coded as pro-criminal defendant or anti- defendant all criminal cases from 1986 to 2001. His paper includes this table: Read more »