[EL] What's indensible in Wisconsin
Allen Dickerson
adickerson at campaignfreedom.org
Sat Feb 6 11:36:25 PST 2016
John raises some good points. To reciprocate, and as a public service for those lacking the inclination to read the opinion on a Saturday:
1. This seems to have been a case of first impression.
2. Nothing in this decision appears to prevent the DAs from seeking a writ of certiorari on their own. They are lawyers, after all.
3. Rick exaggerates when he says "Heck, the Justices won't even let an outside printing company print redacted portions of the John Doe record for the Supreme Court [Petition]." The DAs did not identify which printer they would use, and the Court explicitly invited a motion identifying the printer and giving assurances that secrecy would be maintained. It also revised the secrecy order to permit unredacted documents to be filed, under seal, with SCOTUS.
4. The dissent seems to think the assistance of a specific DC-based firm is required because some lawyers have a higher certiorari grant rate than others. Of course, such discrepancies may reflect skill at picking good cases, and the resources to then represent those claims pro bono. The dissent sells the DAs' staffs short in suggesting they can't bring a competent petition.
5. On the merits: The WI Supreme Court said that the district attorneys could not hire outside counsel to pursue Supreme Court review, and it gave a reason. Allowing this would delegate a "part of the exercise of the prosecutorial function on behalf of the state." (P. 4). The majority cites a state regulation purporting to state that "in [the] absence of statutory authority, prosecuting attorneys are generally not authorized to delegate official powers and duties to others, including private counsel."
6. The dissent argues that this wasn't truly a criminal case, and so -- despite the absence of statutory authority -- hiring outside counsel is appropriate. The majority instead emphasizes that the three DAs intervened in their official capacities as state prosecutors. Not being a Wisconsin lawyer, I'm not in a position to judge this technical question. But it seems plausible (as John notes) that state agencies could be prohibited from delegating their authority to outside parties. And I doubt the targets of the John Doe investigation understood this to be anything other than a criminal proceeding.
________________________________
From: law-election-bounces at department-lists.uci.edu <law-election-bounces at department-lists.uci.edu> on behalf of John Tanner <john.k.tanner at gmail.com>
Sent: Saturday, February 6, 2016 1:34 PM
To: Smith, Brad
Cc: law-election at UCI.edu
Subject: Re: [EL] What's indensible in Wisconsin
For what it’s worth, the federal government has prohibitions against using volunteers to perform official functions. As I recall (I read a bunch of Beth Nolan’s law review articles on the subject while in the WH counsel’s office) the prohibitions were instituted to stop interested corporations from loaning employees to federal agencies. I think there was a to-do about steel and oil companies, but I my be wrong on that. I ran into the prohibition when I tried to take on Congressional Hispanic Caucus Institute interns who were between college and graduate school but not currently enrolled.
Is it common for DAs to have the authority to appeal cases where the AG is not on board?
On Feb 6, 2016, at 12:35 PM, Smith, Brad <BSmith at law.capital.edu<mailto:BSmith at law.capital.edu>> wrote:
The judges are not seeking to "avoid review of their decisions." They are policing abuse of power by other officials and the Bad Government private folks allied with them, and protecting the rights of the citizens of Wisconsin.
The district attorneys are free to pursue review if they think it is a good use of government resources, but I doubt they really think that, or believe they can justify it to the electorate come re-election time. It is a good way to continue harassing their political opponents, and that's their likely aim.
It's a nice bootstrapping effort, though - the Bad Government community casts wildly broad allegations based on highly contestable legal theories; it then announces that anyone who rules against them must be biased and have to recuse themselves; it then claims that anybody who refuses to recuse on that basis must be judged by someone else, who of course, is considered biased unless likely to order that recusal is proper.
We have now reached the point where failing to do the bidding of reformers is itself, per the reformers, proof of corruption. The circle is closed.
Shameless.
Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault
Professor of Law
Capital University Law School
303 E. Broad St.
Columbus, OH 43215
614.236.6317
http://law.capital.edu/faculty/bios/bsmith.aspx
________________________________
From: Trevor Potter [tpotter at capdale.com<mailto:tpotter at capdale.com>]
Sent: Saturday, February 06, 2016 12:15 PM
To: Smith, Brad
Cc: Rick Hasen; law-election at UCI.edu<mailto:law-election at UCI.edu>
Subject: Re: [EL] What's indensible in Wisconsin
So why is it ever " not only defensible but correct" for judges to seek to avoid review of their decisions, especially when they have been accused of a conflict of interest and asked to to recuse themselves , and have failed to do so?
It does not matter what the case is about -- anyone presented with the above facts would think that the integrity of our judiciary required that the judges facilitate review of their actions. One would think they might do so in order to vindicate their conduct and decisions, but certainly it is in the interest of the judicial system that review occur. To take actions that are alleged to violate conflict of interest rules and then do everything in their power to keep the facts secret and frustrate review by a higher court, in a very politically sensitive and controversial case, and over the objections of other justices on the court, does not seem in accord with the fundamental values and principles of the US legal system.
Trevor Potter
Sent from my iPhone
On Feb 6, 2016, at 12:59 PM, Smith, Brad <BSmith at law.capital.edu<mailto:BSmith at law.capital.edu><mailto:BSmith at law.capital.edu>> wrote:
Wisconsin Supreme Court is not only totally defensible, it is correct. What's been indefensible in all this is the disregard of the reform community for basic norms of due process, abuse of government power, and basic norms of free speech and democratic government. The Bad Government crowd is willing to tolerate most any abuse of government and government power in its quest to rid us of the scourge of money in politics--at least when that money runs counter to their views and preferred policies.
Just to set a competing marker down.
Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault
Professor of Law
Capital University Law School
303 E. Broad St.
Columbus, OH 43215
614.236.6317
http://law.capital.edu/faculty/bios/bsmith.aspx<http://law.capital.edu/faculty/bios/bsmith.aspx>
________________________________
From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu><mailto:law-election-bounces at department-lists.uci.edu> [law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu><mailto:law-election-bounces at department-lists.uci.edu>] on behalf of Rick Hasen [rhasen at law.uci.edu<mailto:rhasen at law.uci.edu><mailto:rhasen at law.uci.edu>]
Sent: Saturday, February 06, 2016 11:04 AM
To: law-election at UCI.edu<mailto:law-election at UCI.edu><mailto:law-election at uci.edu>
Subject: [EL] more news 2/6/16
North Carolina Will Appeal Racial Gerrymandering Case Involving Congressional Districts<http://electionlawblog.org/?p=79671>
Posted on February 6, 2016 7:56 am<http://electionlawblog.org/?p=79671> by Rick Hasen<http://electionlawblog.org/?author=3>
See here.<http://www.newsobserver.com/news/politics-government/state-politics/article58756583.html>
I expect the state’s lawyers are spending the weekend drafting an emergency motion to SCOTUS to stay this ruling for the March election, given that absentee ballots are already out.<http://electionlawblog.org/?p=79650> I would not at all be surprised to see a stay even if, as seems fairly likely, this ruling is ultimately affirmed by the Supreme Court for future elections.
And of course, North Carolina could potentially moot this case by drawing new districts that are political, but not arguably racial, gerrymanders.
<share_save_171_16.png><https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79671&title=North%20Carolina%20Will%20Appeal%20Racial%20Gerrymandering%20Case%20Involving%20Congressional%20Districts&description=>
Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>
“Who’s funding this pro-Ted Cruz super PAC?”<http://electionlawblog.org/?p=79669>
Posted on February 6, 2016 7:50 am<http://electionlawblog.org/?p=79669> by Rick Hasen<http://electionlawblog.org/?author=3>
Teddy Schleifer<http://www.cnn.com/2016/02/06/politics/ted-cruz-super-pac/index.html> for CNN:
A super PAC spending millions of dollars to bash Ted Cruz’s Republican rivals is shielding the names of many of its top donors and strategists, accepting and directing donations through a particularly high number of hard-to-trace companies, new documents reveal.
<share_save_171_16.png><https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79669&title=%26%238220%3BWho%26%238217%3Bs%20funding%20this%20pro-Ted%20Cruz%20super%20PAC%3F%26%238221%3B&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>
Indefensible: WI Supreme Court Won’t Allow Prosecutors to Get Outside PRO BONO Help in Case Against WI Supreme Court<http://electionlawblog.org/?p=79667>
Posted on February 6, 2016 7:46 am<http://electionlawblog.org/?p=79667> by Rick Hasen<http://electionlawblog.org/?author=3>
So there’s a potential claim that WI Supreme Court justices should have recused themselves from deciding the John Doe case, given that they themselves benefitted from campaign financing by the same groups in the case. The district attorneys asked for outside help on those cases, from an outside law firm specializing in SCOTUS appeals which would work pro bono (for free).
And today the Wisconsin Supreme Court, itself the target of the appeal, said no<http://www.wpr.org/sites/default/files/2013AP2504%20and%202014AP296%20and%202014AP417%20%282-5-16%29.pdf> (over Justice Abrahamson’s dissent).
Heck, the Justices won’t even let an outside printing company print redacted portions of the John Doe record for the Supreme Court appeal.
This is totally indefensible.
Howard rounds up the stories.<http://howappealing.abovethelaw.com/020616.html#065409>
<share_save_171_16.png><https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79667&title=Indefensible%3A%20WI%20Supreme%20Court%20Won%26%238217%3Bt%20Allow%20Prosecutors%20to%20Get%20Outside%20PRO%20BONO%20Help%20in%20Case%20Against%20WI%20Supreme%20Court&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, chicanery<http://electionlawblog.org/?cat=12>
“WH response to petition offends campaign finance advocates”<http://electionlawblog.org/?p=79665>
Posted on February 6, 2016 7:38 am<http://electionlawblog.org/?p=79665> by Rick Hasen<http://electionlawblog.org/?author=3>
The Hill<http://thehill.com/regulation/finance/268433-campaign-finance-reform-advocates-offended-by-wh-response-to-petition>:
Activists say they are offended by the White House’s response Friday to a petition signed by more than 117,000 people demanding that federal contractors be required to disclose political spending.
The petition, generated on the White House We the People petition page, called for President Obama to take action now or be remembered as the president whose inaction aided the rise of secret money in politics. But the White House, which had 60 days to respond, only reiterated remarks from the president’s last State of the Union address.
“We have to reduce the influence of money in our politics, so that a handful of families and hidden interests can’t bankroll our elections? — ?and if our existing approach to campaign finance can’t pass muster in the courts, we need to work together to find a real solution,” the We the People Team wrote, quoting Obama.
Rootstrikers, an activist organization fighting money in politics, called the response “offensive” and “wholly unsatisfactory.”
<share_save_171_16.png><https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79665&title=%26%238220%3BWH%20response%20to%20petition%20offends%20campaign%20finance%20advocates%26%238221%3B&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>
“Fact Check: Clinton And Sanders On Campaign Finance”<http://electionlawblog.org/?p=79663>
Posted on February 6, 2016 7:34 am<http://electionlawblog.org/?p=79663> by Rick Hasen<http://electionlawblog.org/?author=3>
Peter Overby reports<http://www.npr.org/2016/02/06/465781632/fact-check-clinton-and-sanders-on-campaign-finance?utm_campaign=storyshare&utm_source=twitter.com&utm_medium=social> for NPR.
<share_save_171_16.png><https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79663&title=%26%238220%3BFact%20Check%3A%20Clinton%20And%20Sanders%20On%20Campaign%20Finance%26%238221%3B&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>
“Ask the Author: Richard L. Hasen”<http://electionlawblog.org/?p=79661>
Posted on February 6, 2016 7:32 am<http://electionlawblog.org/?p=79661> by Rick Hasen<http://electionlawblog.org/?author=3>
Kate Ackley interviewed me for CQ Weekly<http://www.cq.com/doc/weeklyreport-4830359?6&search=j8q7isAs> ($):
In his new book, “Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections,” law professor Richard L. Hasen of the University of California, Irvine, calls President Barack Obama a hypocrite on political money issues and suggests controversial remedies, such as outlawing fundraising by lobbyists, to quell what he views as out-of-control campaign spending.
Hasen spoke to CQ’s Kate Ackley. Here’s an edited transcript
<share_save_171_16.png><https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79661&title=%26%238220%3BAsk%20the%20Author%3A%20Richard%20L.%20Hasen%26%238221%3B&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, Plutocrats United<http://electionlawblog.org/?cat=104>
--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu><mailto:rhasen at law.uci.edu>
http://www.law.uci.edu/faculty/full-time/hasen/<http://www.law.uci.edu/faculty/full-time/hasen/>
http://electionlawblog.org<http://electionlawblog.org/><http://electionlawblog.org<http://electionlawblog.org/>>
_______________________________________________
Law-election mailing list
Law-election at department-lists.uci.edu<mailto:Law-election at department-lists.uci.edu><mailto:Law-election at department-lists.uci.edu>
http://department-lists.uci.edu/mailman/listinfo/law-election
<116020612155002101.png>
_______________________________________________
Law-election mailing list
Law-election at department-lists.uci.edu<mailto:Law-election at department-lists.uci.edu>
http://department-lists.uci.edu/mailman/listinfo/law-election
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20160206/2e0684eb/attachment.html>
View list directory