Welcome, if you're new here, you may want to subscribe to our RSS feed or subscribe to our email newsletter. Thanks for visiting!

Justice Louis Butler seems to have a press release a day on Wispolitics touting a new endorsement by a labor union. These unions include major public employees unions: Madison Teachers, Inc., American Federation of State, County, and Municipal Employees, Retired Professional Fire Fighters of Wisconsin, Wisconsin Education Association Council, American Federation of Teachers, Teamsters, Milwaukee Professional Firefighters Association, Wisconsin AFL-CIO, etc.

In addition to endorsements, they have showered down cash upon his campaign as well: AFT Wisconsin, $8,625.00, Madison Teachers Inc, $8,625.00, AFSCME 40 & 48, $8,625.00, WI AFL-CIO $5,000.00, Winnebagoland Uniserv PAC (teachers) $3,000.00, American Federation of Teachers #212 $2,500.00, Capital Area Uniserv North (teachers) $2,000.00, United Northeast Educators $2,000.00, Southwest Education Association $1,500.00, Kettle Moraine Uniserv Co (teachers) $1,000.00, Lakewood Uniserv Council (teachers) $1,000.00, Northern Tier UniServ-PAC (teachers) $1,000.00, UW-Madison Teacher Assistants $1,000.00, Kenosha Education Association $500.00, Milwaukee Professional Firefighters 215 $500.00.

It’s fair to ask what’s at stake for public employee labor unions in this election, that they come down so heavily for Justice Butler. Here are four Court of Appeals decisions from the last six months that would draw intense interest from the unions if they went to the Wisconsin Supreme Court:

Madison Metropolitan School Dist. v. Madison Teachers, Inc., 2008 WL 249087:

Debra Tichenor is employed by the District as a special education teacher. During a previous disciplinary proceeding, Tichenor provided her union-appointed attorney with a copy of an individualized education program (IEP) for a student. The District issued Tichenor a written reprimand for releasing a student record to an unauthorized third party without written consent or authorization alleging the action was a violation of two board policies. Tichenor’s union, Madison Teachers, Inc., filed a grievance, which eventually went to arbitration. The arbitrator concluded that Tichenor was permitted to provide her union representative with the IEP during the grievance process, and therefore the District violated the collective bargaining agreement by imposing discipline without just cause.

Loth v. City of Milwaukee, 2007 WL 4530816:

Albert Loth appeals from the circuit court order granting the City of Milwaukee summary judgment, dismissing his complaint, and denying his motion for summary judgment declaring the City had breached its contract with him when it adopted a resolution reducing the retirement benefits to which he would have been entitled at retirement under the earlier resolution. … [Reversed] Loth is entitled to summary judgment based on the City’s breach of its obligation to pay his health insurance premiums according to the terms of the 1973 ordinance and related City publications referred to herein, after he retired until he reached age sixty-five.

Brown County v. WI Employment Relations Com’n 742 N.W.2d 916:

The County argues it had sole discretion, notwithstanding its collective bargaining agreement, to decide whether to terminate Vetter for commission of a crime “substantially related to the care of a client.” See Wis. Stat. § 50.065(5m).FN1 It also argues the Commission lacks authority to resolve the dispute. We conclude that the County’s discretion is limited by its collective bargaining agreement, and the Commission has authority to resolve the matter subject to the usual judicial review.

Helgeland v. State of Wisconsin, ongoing
Does it violate equal protection for the state to deny health care benefits to the domestic partners of homosexual state employees when it provides those benefits to the married spouses of heterosexual state employees?

In addition to the cases that could be before the Court soon, the public employee labor unions know that Justice Butler has been their friend on past cases as well, such as Solie v. Employee Trust Funds Board, 2005 WI 42. In a case brought by WEAC, Justice Butler wrote for the majority that “creditable service” by teachers is equivalent to a monetary deposit in a retirement fund. In dissent, Justice Wilcox says the decision “is in contravention of both common sense and the definition of the words” at issue (58). “[T]he majority cites no statute, administrative rule, or case for the proposition that the retirement deposit fund may contain something other than money. It simply declares it to be so” (64). This assertion is nothing more than “judicial fiat” in Justice Wilcox’s view (70). Perhaps it is no wonder, then, that WEAC is up with a TV ad supporting Justice Butler.

Obviously unions support Butler, and obviously the business community is generally supporting Judge Gableman. My point is simply this: these cases have a major impact on the taxpayers of the State of Wisconsin. Look at the parties in the 4 Court of Appeals cases above - Madison Schools, City of Milwaukee, Brown County, State of Wisconsin: If the union wins in each of those cases, it will cost the taxpayers of this state more money. We already have out of control fringe benefits for public employees - do we really want a justice hand-picked by the public employee unions deciding statutory interpretation cases like Solie on the scope of those benefits?

The Wisconsin Supreme Court released its decision in Shannon v. Progressive Northern Mutual Insurance today. I haven’t had a chance to read the opinion (it was unanimous, with a concurrence by the Chief), but I noted this at the top of the sheet:

An amicus curiae brief was filed by William C. Gleisner, III and Law Offices of William C. Gleisner, Milwaukee; Linda V. Meagher and Habush Habush & Rottier, S.C., Waukesha; and Lora A. Kaelber and End, Hierseman & Crane, LLC, Milwaukee, on behalf of the Wisconsin Academy of Trial Lawyers.

Mr. Gleiser and WATL, presumably, were siding with the plaintiffs in the case against the insurance company. The Court of Appeals had issued an unpublished opinion for the plaintiffs. The Supreme Court reversed, in an opinion by J. Crooks:

We reverse the decision of the court of appeals. Doing so, we hold that, based on public policy grounds, a claim for common-law negligence cannot be maintained against social hosts, such as the Niesens, who allegedly were aware that minors on their property were consuming alcohol, but who did not provide the alcohol, when an underage guest later allegedly caused an alcohol-related car accident. To hold otherwise would be a significant extension of common-law liability. If that is to occur, in this instance, it should be done by the legislature, not by this court.

In her concurrence, the Chief Justice writes, “I write further to express my reservations about the court of appeals’ sketchy analysis of Wis. Stat. § 125.07(1)(a)3.” — Sketchy, in a WI S.C. opinion — that’s classic!

Justice Louis Butler’s response to the Milwaukee Journal Sentinel questionnaire starts off with liberal pablum that screams activist:

I first became a lawyer, then a judge, and now a Justice, because I am dedicated to achieving equal justice for all people, including the downtrodden and those who lack resources. I embrace the sentiment that injustice to anyone is intolerable, and that everyone should have access to the courts and a right to be heard.

We’ve heard this line thirce in two weeks, which means he actually thinks he believes it:

I also consider myself to be a textualist. I find it to be more effective to “read the words on the page,” discerning what the legislature has actually done, as opposed to what I think it may have intended to do.

He made a similar comment last week to the Milwaukee Bar Association forum (and to the MJS ed board):

My philosophy has been the same for years, to uphold the Constitution, to hold wrongdoers accountable, interpret and apply the law. I have a framework, I start with the facts of the case, the United States Constitution, the Wisconsin Constitution, state statute, and when I interpret state statutes, I am a textualist in the mold of Hugo Black or Antonin Scalia. I look at our common law when the legislature has not spoken, and I look at precedent, and then I put all of that to the facts of the case. The goal in every single case is justice, that’s why we’re there.

A textualist like Scalia? Were decisions he joined like In Re Jerrell CJ texualist? Or his own opinion in Solie or Kolupar?

Finally, in several fora Justice Butler has described his method of approaching as such: “The process I go through is to look first at the U.S. Constitution, then the Wisconsin Constitution, state statutes where the legislature has spoken, our common law where the legislature has not spoken, and our prior precedent.”

I find it interesting that he identifies the US Constitution as his first source of law, then the Wisconsin Constitution. That’s interesting because he relies on the Wisconsin Constitution for major decisions in Knapp and Dubose, for instance, when the US Supreme Court had already interpreted the US Constitution in like cases. Or how about this quote from McGrew:

[T]hat the United States Supreme Court has concluded in Williams v. Florida (1970), that the Sixth Amendment did not require that a jury be comprised of 12 persons has limited import on what the Wisconsin Constitution secures. See State v. Knapp; State v. Dubose. [98]

Hopefully tomorrow I can tackle his purported respect for precedent, and also the GBPG endorsement and Butler’s comments on Thomas and Judicial Ideology to the MJS Editorial Board.

From Senator Lena Taylor’s questionnaire for the Milwaukee Journal Sentinel in her campaign for Milwaukee County Executive:

Getting our fair share is my number one choice for increased revenue, but gaining cost savings by skilled and experienced management is my second step. We need a manager who will address the waste in county government that comes from inefficiencies, lack of collaboration, failure to use best practices, lack of innovative thinking, adequate assessment of our assets, and a strategic plan to move forward.

Oh really? Is that why she opposes Mr. Walker’s call for seasonal parks workers?

Taylor said laying off parks workers for seasonal help was shortsighted. “The lawn mowers need to be prepared . . . and the snow needs to be shoveled,” said Taylor. “He continues to squander our assets.”

Mr. Walker’s innovative proposal would save taxpayers significant dollars (on the order of $2.8 million or so), and increase total manhours of parks workers by nearly 20,000. Yet Lena opposes it because it would reduce the number of members in the local AFSCME chapter. If she can’t support Walker’s parks proposal, how is she supposed to have the political willpower to make the kind of cost-savings she is promising to the MJS? She can’t have it both ways - promising cost savings, and criticizing Walker for every cost-savings measure he proposes as a service cut.

(Speaking of AFSCME, check out this quote from their story endorsing Lena: “‘It’s going to take money — whether its tax dollars or some other form of revenue generation — and I think Lena is far more qualified in that area to put us on the right track,’ says Rich DeSpears, president of Local 170, which represents Milwaukee County Mental Health Employees.” At least he’s honest about it.)

What is a conservative voter to do when given the choice between two political liberals for a judicial office?

Start by asking a different question. Do not ask, What to do when there are two political liberals running against one another for judge? Instead, ask, Are both candidates judicial liberals?

There is a certain sub-set of political liberals who are also judicial conservatives (or at least judicial moderates). These political liberals have the personal integrity, intellectual honesty, and self-restraint to rule on what the law says, even when it conflicts with what they personally would like the law to say.

To give an example, consider this quote from Laurence Tribe of Harvard Law School in the Washington Post, discussing the upcoming SCOTUS decision in DC v. Heller, the handgun ban case, “The Supreme Court’s endorsement of an individual right would be a monumental change in federal jurisprudence, but perhaps not surprising. Even a small but growing group of liberal constitutional scholars — ‘against my political instincts,’ in the words of Harvard law professor Laurence H. Tribe — have endorsed the individual-right view. … Tribe, whose support of the individual right is often cited by gun rights supporters, wrote an article in the Wall Street Journal recently that said the District’s law could still be upheld and urged the court to decide the case narrowly.”

I believe that Judge Lisa Neubauer of the Wisconsin Court of Appeals, Second District, is a political liberal but a judicial conservative (or at least a judicial moderate). While I might not support her some years hence for the Wisconsin Supreme Court, in the race against Attorney Bill Glesier, Judge Neubauer is the easy choice. I have met both Judge Neubauer and Mr. Gleiser; they both are very nice people. But a number of people whom I very much trust on these issues are agreed that Judge Neubauer possesses the preferable temperament for the bench.

As a voter in Mequon, I’ll be one of the voters faced with the choice in this race, as will all voters in Calumet, Fond du Lac, Green Lake, Kenosha, Manitowoc, Ozaukee, Racine, Sheboygan, Walworth, Washington, Waukesha, and Winnebago counties. I hope you’ll join me in supporting Judge Neubauer for this important seat.

P.S. On another note, allow me to associate myself with comments by Prof. Esenberg and Charlie Sykes concerning the Gableman ad that has the world abuzz. It is misleading, and I would not have run it were this my campaign.

State Senator Lena Taylor is trying to connect to young voters, a worthy goal, by having a personal Myspace page. If you go to her campaign homepage, on the right hand side there is a Facebook and Myspace button. Click on the black Myspace button, and then under her photo, “Pics.” (You need a Myspace account to access the pics).

Do so, and you’ll find the following image among her “Pics.”

You can see the full screen shot here.

Senator Taylor’s description of the image: “My favorite part is Africa”

The tag on Mexico says, “They do our laundry”

The tag line on India and China says “They make our stuff”

It shocking that Senator Taylor wants to lead a racially diverse community like Milwaukee County, yet at the same time displays such incredible bad judgment as to post such an image on her website.

From a post by Counselor Michael Plaisted regarding an event earlier this week that considered the Wisconsin Judicial Campaign Integrity Committee:

The State Bar is a “quasi-public agency” declared [Jim] Bopp, which I’m sure comes as a surprise to everyone in the state of Wisconsin. You’d expect this kind of amateur mistake to be made by a too-willing-to-please law student, but not by a grown-up like Bopp – not to mention [Rick] Esenberg, who at least is from here and repeated the baseless claim. …
But Bopp knows the State Bar is not a public agency, quasi or otherwise. Maybe he even tried to draft the complaint and fell down laughing when he tried to define the defendant as a state agency. That certainly would have been the reaction of any judge who saw such nonsense in print. In my only contribution to the program, I laughed out loud when he said it the second time.

This is a claim Atty. Plaisted has made before, defending Atty. Basting’s characterization of the WJCIC as a “group of private citizens.” Contra Attorney Plaisted, the evidence shows that Mr. Bopp and Prof. Esenberg are quite correct in their description of the State Bar as a public agency.

The foundational case holding that the State Bar is a state actor is the Wisconsin Supreme Court’s decision in Lathrop v. Donohue. Holding that the integrated State Bar did not offend a member’s free association rights, the Court said:

Furthermore, the State Bar is a public and not a private agency. In the annotation entitled, ‘State bar created by act of legislature or rules of court; integrated bar,’ 114 A.L.R. 161, the author states:
‘While the statutes or court rules under which they have been organized differ to some extent, integrated bars have the common characteristics of being organized by the state or under the direction of the state, and of being under its direct control, and in effect they are governmental bodies.’

State Bar of California v. Superior Court, 1929, 207 Cal. 323, 278 P. 432, 434, and In re Gibson, 1931, 35 N.M. 550, 4 P.2d 643, 653, support the above-quoted statement. … The State Bar is a public agency the same as the Judicial Council. One has been created by the court and the other by the legislature but each was created by state action as a state agency to serve a public purpose.

Lathrop, 10 Wis.2d 230, 242-43 (Wis. 1960).

The Lathrop decision was appealed by the plaintiff to the Supreme Court of the United States. In upholding the Wisconsin Supreme Court’s decision, the U.S. Supreme Court did not directly address the public agency question. It did, however, classify the Bar as serving a “legitimate end of state policy” to hold that the Wisconsin Supreme Court may require an integrated bar. Lathrop v. Donohue, 367 U.S. 820, 843 (plurality) (1961).

The Lathrop standard of “public agency” was undermined by Judge Barbara Crabb of the Western District of Wisconsin in 1988, when she rejected a claim of state sovereign immunity for the Bar. She found the Bar’s “overall independence,” particularly the separation of its funds from the state treasury, meant it was “not a public agency for purposes of the Eleventh Amendment.” Levine v. Supreme Court of Wisconsin, 679 F.Supp. 1478, 1487-88 (W.D.Wis., 1988). Judge Crabb’s decision in Levine was overruled by the U.S. Court of Appeals for the Seventh Circuit. Levine v. Heffernan, 864 F.2d 457 (C.A. 7, 1988). The Court of Appeals held that Lathrop was still good law, but it did not directly address the immunity question.

Another federal district court judge, ruling after Crabb, granted qualified immunity to the State Bar’s director as a public official. A lawsuit against the State Bar was moved to the Northern District of Illinois to give the case a fair hearing before an unbiased judge. Judge Roszkowski adopted entirely the report of Magistrate Judge Mahoney, who wrote:

The defense of qualified immunity is available to public officials. Abel v. Miller, 824 F.2d 1522, 1530 (7th Cir.1987). The defense is intended to provide public officials with the ability to “reasonably anticipate when their conduct may give rise to liability for damages.” Anderson v. Creighton, 483 U.S. 635, 646, 107 S.Ct. 3034, 3042, 97 L.Ed.2d 523 (1987). The doctrine of qualified immunity extends to individuals as well as to the institutions for whom these individuals work. Abel v. Miller, 824 F.2d 1522, 1530 (7th Cir.1987). In Werle v. Rhode Island Bar Ass’n, 755 F.2d 195 (1st Cir.1985), the First Circuit Appellate Court held that the defense of qualified immunity is available to a Bar Association. …

Crosetto v. Heffernan, 810 F.Supp. 966, 976-78 (N.D.Ill., 1992). Judge Mahoney granted the State Bar’s executive director his defense of qualified immunity.

The U.S. Court of Appeals for the Seventh Circuit accepted an appeal of the decision and specifically affirmed the qualified immunity defense, labeling the State Bar executive director a public official. Crosetto v. State Bar of Wisconsin, 12 F.3d 1396, 1403-04 (C.A.7, 1993), cert. denied, 511 U.S. 1129 (1994). Sua sponte, the Court of Appeals asked whether the suit against the Bar was barred by the doctrine of state sovereign immunity. The Court pointed out that the U.S. Supreme Court had held that another state’s bar constituted state action:

The Supreme Court has never directly addressed the sovereign immunity of state bars, but its approach in related areas may be helpful to the analysis. For example, in holding that the actions of a state bar association constituted enough official state action to exempt a state bar from antitrust law, the Supreme Court has noted that “the regulation of the activities of the bar is at the core of the State’s power to protect the public…. Few other professions are as close to the core of the State’s power to protect the public. Nor is any trade or other profession as essential to the primary governmental function of administering justice.” Hoover v. Ronwin, 466 U.S. 558, 569 n. 18, 104 S.Ct. 1989, 1996 n. 18, 80 L.Ed.2d 590 (1984) (citations omitted). The Court concluded that because of this close relationship, “although only the State Bar was named as a defendant in the suit, the [plaintiff's] complaint was with the State.” Id. at 571, 104 S.Ct. at 1977.

Crosetto v. State Bar of Wisconsin, 12 F.3d at 1401. Thus, the Court remanded the question to the district court. “We agree that a suit against a state bar association, as a general matter, may constitute a suit against the state for sovereign immunity purposes. Whether the Wisconsin State Bar, in particular, is vested with sufficient state characteristics to qualify for sovereign immunity is a factual question, however, that cannot be answered now on the record before us.” Id. at 1402.

On remand, the District Court held that the State Bar was, in fact, a state agency entitled to sovereign immunity. No published memorandum. In an unpublished opinion, the Seventh Circuit affirmed this decision, citing another panel’s recent decision in Thiel v. State Bar of Wisconsin. Crosetto v. State Bar of Wisconsin, 97 F.3d 1454 (Table) (C.A. 7, 1996), cert. denied, 519 U.S. 1116 (1997). In Thiel, the Seventh Circuit specifically held that the State Bar was a state agency for purposes of Eleventh Amendment immunity. Thiel v. State Bar of Wisconsin, 94 F.3d 399, 400-03 C.A.7 (Wis.), 1996. The Thiel decision was reaffirmed as recently as 2005, in an opinion by Judge Posner. “The first two factors are certainly sound and the decision in Thiel is unquestionably correct. The state bar is a limb of the Supreme Court of Wisconsin…” Takle v. University of Wisconsin Hosp. and Clinics Authority, 402 F.3d 768, 772 (C.A. 7, 2005).

From Lathrop to Takle, the law is clear: the State Bar of Wisconsin is a public agency, an arm of the state Supreme Court. This reality has important consequences for the free speech police at the WJCIC.

Given our recent focus on crime here on GOP3, I thought it would be appropriate to highlight a crime-related bill proposed by Senator Taylor (SB 534).

According to the Legislative Reference Bureau summary,

Under current law, if a person commits a misdemeanor (which, in general, is a crime for which a person may be imprisoned for no more than one year) before he or she reaches the age of 21, a court may order that the court’s record regarding the offense be expunged upon the offender’s successful completion of his or her sentence. … The court may enter such an order only at the time of sentencing and only if it finds that expunging the record will benefit the person and will not harm society.

This bill makes this expungement option available for all offenders, regardless of their age at the time of their offenses, unless the misdemeanor conviction was the result of a plea agreement for certain felony charges. In addition, upon the expungement of a person’s conviction, he or she can no longer be affected by any prohibition, disqualification, disability, increased penalty, or other adverse or unfavorable treatment that results from a misdemeanor conviction, including any adverse consequences that might result from a court’s consideration of the expunged offense in any subsequent case.

I believe that generally people deserve a second chance, and that juvenile offenders should be treated differently than adults. I also believe that people should be held responsible for their conduct, and that past acts are the best predictor of future behavior. I would oppose this effort to remove some of the consequences of individuals’ actions.

And for those of you who think that misdemeanors are just little crimes, know that in Wisconsin all of the following are misdemeanor crimes: Buying a handgun using false information, Prostitution / Sexual Gratification, Lewd and Lascivious Behavior, Graffiti, Knowingly violating a domestic abuse protection order, Criminal neglect of a child, and Intentional contribution to the delinquency of a minor. If you were wondering, I picked those examples because Attorney Lena Taylor has defended criminals who were convicted of all those crimes.

P.S. For those who thought I was exaggerating when I talked about Senator Taylor’s sex ed bill, note that Elmbrook Schools was planning to start teaching about oral sex in sixth grade.

We have noted before the difficulty of reconciling the rhetoric from the Wisconsin Judicial Campaign Integrity Committee and the reality. In the first case, we saw statements Chairman Tom Basting made to Wispolitics.com contrasted with internal committee emails that told a very different story.

Today, we see the spin exposed concerning the State Bar Board of Governors’ approval of the Committee project.

Here is the complete press release from the WJCIC, dated Feb. 29 and titled “State Bar Association Board of Governors Endorses Creation of Judicial Campaign Committee”:

State Bar of Wisconsin President Tom Basting thanked members of the association’s Board of Governors for endorsing his decision to create the Wisconsin Judicial Campaign Integrity Committee (WJCIC) to help monitor the 2008 state Supreme Court race. The 49-member board manages and directs the Bar’s activities. “I am grateful that my peers from across Wisconsin and all practice areas recognize the unique and important role the Bar is playing in educating voters about the functions of the judiciary and judicial elections in our system of government,” Basting said.
Board members expressed strong support for the WJCIC and its mission at the body’s February 29 meeting at the State Bar Center in Madison.

“Strong support,” eh? The Wisconsin Law Journal has a report out today that tells a different story of the meeting… Their story is titled “Board members question Bar sponsorship of campaign committee.”

On Feb. 29, some members of the State Bar of Wisconsin’s Board of Governors called for the Bar to suspend sponsorship of the WJCIC and one criticized President Thomas J. Basting, Sr., for his administrative authority to create the committee. The board ultimately voted to support Basting’s formation of the committee, but the issue of whether or not the State Bar should be formally associated with the WJCIC was tabled until after the election.

That hardly sounds like “strong support” to me.

One governor explicitly questioned Basting’s authority to create the committee: “Morse questioned the authority of the president to create the WJCIC without board approval of membership and funding. Basing cited at least 15 other instances where past presidents formed ad hoc committees and in none of those cases was board authorization a prerequisite.”

This is a thought I’ve had before. In fact, I intended to make a post on the subject a while ago, but didn’t get around to it. I specifically emailed State Bar staff on Feb. 20 to ask if the BOG had approved the creation of the Committee, and I was informed that they had not (then, a few days later, the Board does so at its next meeting. Fascinating). Here is a modified version of the draft I had written, “Quo Warranto, Mr. Basting?”

There are, according to my advanced civil procedure professors, several ancient and venerable writs at common law, the invocation of which should inspire great thoughts of wise English judges in funny wigs. The mighty writ of quo warranto is one such writ. It is, loosely translated, “By what authority?” In Wisconsin, you can still bring an action for such a writ when you believe that a person does not properly have title to a public office (Wis. Stat. ch. 784).

The phrase “Quo Warranto” or “By what Authority?” provides an interesting launching point for a discussion of the legitimacy of the Wisconsin Judicial Campaign Integrity Committee. Basically, my question is this: By what authority did Mr. Basting create the Committee and decide to use State Bar resources to support it?

Supreme Court Rule10.04(2)(a) lists the powers of the president of the State Bar, which include: “He or she shall make the appointments to and designate the chairperson of all standing committees, create and appoint special committees, and be a member, ex officio, of every committee.”

The By-laws of the State Bar, Article IV, Section 6, expound further on the rules for special committees: “Each special committee shall consist of a number of members determined and appointed by the President… Creation or abolition of a special committee by the President is subject to review and approval by the Board of Governors.”

Finally, consider that the SCRs give the Board of Governors the power to appropriate money - “Make appropriations and authorize disbursements from the funds of the state bar in payment of the necessary expenses of the association” 10.05(4)(a)(2) - and set the duties of employees - “Engage and define the duties of employees and fix their compensation” 10.05(4)(a)(3) (see also 10.09(1) and 10.11).

Now, my proposition is this: for a while there, up until the BOG vote last week, the WJCIC lacked the appropriate authorization to identify itself as “a project of the State Bar of Wisconsin” (as it does on its website) and the authorization to use Bar staff and funds. Like Gov. Morse, I think it still falls outside the powers of the president to create or BOG to approve, regardless of whether presidents created ad hoc committees in the past in violation of the rules.

The powers of the President of the Bar include the power to appoint a special committee. However, such a special committee must, under Bylaw 4/6, be composed of members of the State Bar. Yet the members of the WJCIC are NOT all members of the State Bar, and in fact purposefully so.

This Judicial Campaign Integrity Committee is President Tom Basting’s baby. Yet it is NOT a special committee of the State Bar of Wisconsin. Its creation by President Basting does not fall within any of his enumerated powers in the Rules or Bylaws as president of the State Bar. The only thing he could latch onto in the text is a very broad construction of his role as “chief executive officer of the association,” a construction so broad that even Chief Justice Abrahamson might blush.

That is not to say that President Basting could not lend the weight of his title to a committee. He could collaborate with other concerned, prominent citizens to create a citizens committee which relied on the moral authority of their individual public service for its power. In many ways, I think that Mr. Basting wanted to do exactly that. But such a committee could not identify itself as a project of the State Bar and could not commandeer State Bar staff for its work and funds for its operation. Yet the Committee does so. Mr. Basting is trying to have it both ways - he wants to say its a “group of private citizens,” yet he wants the staff and resources and stature of the State Bar. He can’t have it both ways.

According to the WLJ article, “Basting defended the level of participation State Bar staff currently have with the WJCIC and indicated the organization would operate independent of the bar in the future.” If it can operate independently in the future, why can’t it operate independently now?

By what authority, Mr. Basting? If you or your supporters want to claim that this is justified by some provision of the SCRs or By-laws, the comments section is open. Otherwise, I’ll pull out another Latin phrase from the law - Ultra Vires - acting “beyond the power” given to the State Bar president.

Today, Marquette Law School hosted a debate between the two candidates for Milwaukee City Attorney, Grant Langley and Pedro Colon. Mike Gousha did a great job moderating, as always, and you can listen to the webcast on MULS’ website.

The webcast is up, and when I get a few free minutes tomorrow morning, I will get an exact transcription. Meanwhile, here’s the gist of it:

During the debate, both Langley and Colon mentioned that the City Attorney serves as counsel to Milwaukee Public Schools. During the audience Q&A, then, I asked a question like, “Rep. Colon, you’ve mentioned MPS and educational equity several times. Would you aggressively file litigation to pursue broad policy changes?”

Colon responded by pledging to look for a lawsuit on behalf of MPS attacking the current school financing formula. He said we needed to vindicate the constitutional rights of K-12 students in MPS. He talked about how choice schools are shifting and increasing the financial burden on MPS.

Langley responded by saying that his office had evaluated the precedent (presumably Kukor and Vincent) and that he was meeting with MPS officials tomorrow to discuss litigation strategy.

This could be big folks. In the 2007 State Supreme Court race, Linda Clifford made a comment at a MULS/Gousha debate that she thought the Supreme Court ought to revisit education equity precedents. Today WEAC announced their endorsement of Justice Louis Butler - in 2000, WEAC filed a brief as an intervenor arguing for “sufficient resources” from the State.

This is all part of a nationwide litigation movement by teachers unions, school administrators, and professors suing for more education spending by state governments. Using state constitutional guarantees (in Wisconsin, the phrase is “as nearly as uniform as practicable”), these lawsuits ask courts to order the state to spend more - we are now generally in the “adequacy” phase of the effort.

The case of Arkansas was in the news a lot during Mike Huckabee’s campaign for president. Look at this as an example:

In 2003, the [Arkansas Supreme] Court gave the state until January 1, 2004 to perform a cost study and establish a constitutional funding system. After belated action from the legislature in June 2004 that increased state school aid by $400 million (17 percent), the court closed the case but reopened it a year later, after agreeing with plaintiffs that the 2005-2007 state budget again failed to deliver on promises made in 2004 to adequately fund schools. In the 2007 legislative session that ended this spring, the Arkansas legislature added another $122 million in state aid, on top of $82.5 million added in the 2006 session. For construction and repair of school facilities, which were also deemed inequitable in the court’s earlier rulings, the legislature authorized $120 million in 2005, an additional $50 million in 2006, and, in this year’s session, passed Act 1237, which appropriated $456 million for facilities, on top of another $220 million in facilities funding from other funding sources and other legislation that implemented procedures for state oversight of facilities construction and renovation.

This is what you get, folks. Hundreds of millions of dollars more in state spending ordered, which can only come from tax increases or cuts to other areas of the state budget. WEAC running to the State Supreme Court with an original action after every budget complaining that it wasn’t enough. The Supreme Court meddling every other year in our state education system. How much would it cost? One 2006 study by UW professors estimated that “adequacy” in Wisconsin would cost an additional $786 million, or 9.2 percent, increase in education spending statewide. A 2002 study by the Institute for Wisconsin’s future concluded that a 32% increase in spending was necessary.

It looks like either City Attorney candidate will pursue this litigation if they get the opportunity (for the record, I much prefer Langley based on today’s debate - Colon’s legal refresher should start with statutory interpretation of the law detailing the powers of the office). This is much more about the state Supreme Court race - WEAC will gladly dump a few million into GWC to get Butler elected if it means that they can get an additional $800 million annually in state spending. Taxpayers and those who care about the separation of powers should support Gableman.