Wednesday, December 28, 2011

Where can you find a decent gulag nowdays?

Speaking of The Nation. It's grown nostalgic for the Soviet Union. I mean, after all, where is the front without the communists?

Got equality 'cuz you want it?

I don't always read the work of other "community columnists" in the Journal Sentinel. I should do better with that, but I did note with interest today's contribution by George Wagner because it plays off a theme - perhaps the only theme - that might result in President Obama's reelection.
Income inequality.

Mr. Wagner goes after the unequal distribution of income with about as nuance and appreciation for economics as does the President. "We" want incomes to be more equal so all that "we" must do is pass a law to make it so. All we need to is tax away what the awful one percenters don't need or, perhaps more accurately, whatever amount it is that "we" want.

It is not my intent to make a brief for the fireside equities of millionaires and billionaires. There is a case to be made but no one really wants to hear it. We live in coarse times in which the notion that someone has a right to keep what they earn is regarded as antiquated and insufficiently sophisticated. Because fortunes can't be accumulated without some publicly provided infrastructure and the rule of law enforced by the state, there is no such thing as property rights free from the claim of the state.

If the logic of that eludes you, you're not the first.

But, in fairness, no one (at least not since FDR) proposes to take it all and what could be the harm of evening things out a bit?

Within certain ranges, the answer, I suppose, is not all that much. We do it today. One of the most startling things about the Democratic calls for the rich to pay their "fair share" in taxes, by most measures they already do. Top income earners pay a higher share of both federal income tax than their share of the national income and, Warren Buffett notwithstanding, they pay, as a group, a higher percentage of their income in taxes than the less well to do.
So the issue is not whether our tax system should be progressive and redistributive, but whether it should be more progressive and redistributive.

Mr. Wagner thinks so but his argument assumes that wealth is simply "there" - something that can be allocated in any way that we want it to. It's not. Higher tax rates affect economic behavior. They create disincentives and distortions in the allocation of resources and effort which, as rates increase, shift from the most productive use to the most tax efficient use. While higher tax rates may lead to additional revenue, they may also lead to reduced economic growth.

We've seen this in the past. The confiscatory tax rates of old - 70, 80, 90 % - did not result in revenues that were much higher than the lower rates of the Reagan era.

You can take that observation too far. Higher rates can result in more revenue but there is a strong case to be made that lower rates on a broader base lead to more equitable and productive results.

Don't believe me? Yesterday I read an article in The Nation (yes I do) that commended a new form of class based progressivism drawing upon lessons from the UK. The point was that, since the rich will always find ways to avoid redistributive taxes, the better path is to control incomes, i.e.. prevent those high earners from getting the money in the first place.

This would, of course, be economic suicide and far worse than moderately progressive taxation, but you get the point. The rich are not necessarily the middle class' oyster.
In any event, the rosy scenario that Mr. Wagner envisions is befouled by the math. You could
double their current tax bills without coming close to eliminating the federal budget deficit or generating more than several hundred dollars per head to redistribute to everyone else.

Still, I give Mr. Wagner credit for moving the debate. My next Journal Sentinel column will be on the came topic.















Tuesday, December 27, 2011

Best wishes for Rep. Grigsby

I don't know Tamara Grigsby. I met her once at WMCS. She seemed bright and gracious. Obviously we don't agree on politics, but even wing nut prayers can't hurt.

Thursday, December 22, 2011

Music for a Chrstmas Week Thursday

Sonny Boy Williamson (more accurately Sonny Boy II) lived in Milwaukee and recorded this Christmas classic.




It's hard to find a more poignant contemporart holiday song than Bing Crosby's World War II era "I'll Be Home for Christmas. "

Wednesday, December 21, 2011

Music for a Christmas Week Wednesday

I like more contemporary - or at least new - renditions of traditional Christmas carols. So if we can stop name calling long enough, here is one I like.



This one gets mixed reactions. I have never been able to decide whether Patti Smith is a poet or pretentious poseur. Probably - like the rest of us - a bit of both.

Tuesday, December 20, 2011

Michael Gableman and his lawyer

A couple of things about the dust-up regarding Michael Best's representation of Justice Michael Gableman in ethics proceedings stemming from the Reuben Mitchell case. We've seen a ripple of uninformed commentary. I think the issue is worth discussing but it's not the scandal that some people seem to think it is.
Is the arrangement unusual? Any case brought by the Judicial Commission is a bit unusual, so we can't look at a large universe of judicial discipline cases. But considering cases of all types, the fee arrangement here really isn't uncommon. Because state law provides for the prevailing party to recover fees, this was what lawyers often call a "fee generating case," i.e., a case in which the law provides for payment of fees to the prevailing party or there is  the potential for a monetary recovery from which fees can be paid. These arrangements allow lawyers to take a case in which the client could not otherwise afford to hire them.
We are all familiar with the typical contingency arrangement in personal injury cases. A lawyer provides services (clearly a thing of value) but is not paid unless there is a recovery. The lawyer agrees to do this because, if she does not, the client will be unable to afford to retain her. She makes an economic decision - it is better to have the opportunity to earn a fee than not. (This is one reason that a personal injury lawyer may not take your case if it is too weak or too small.)
We are less familiar with contingency arrangements under which the fee is paid not out of a recovery but because there is a statute that awards fees to a prevailing party. But they are also fairly common. They are, in fact, the bread and butter of lawyers who specialize in civil rights cases and class actions.  The economic calculus is the same. The lawyer decides that a shot at fees (even if it means working a case "on the come") is better than no shot at all.
This latter arrangement was apparently the bargain between Justice Gableman and Michael Best. To say that contingency fee arrangements involving defendants are rare does not get us far because there are relatively few statutes permitting the award of attorney fees to a defendant.[i] But there was one in this case.[ii]
In a complaint filed today with the Judicial Commission, Mike McCabe and the Wisconsin Democracy Campaign say that the arrangement is unusual because the award of attorney fees in a case like this is discretionary. Because the controlling law, Wis. Stat. § 757.99, says that fees "may be" awarded, WCD’s McCabe – who is not a lawyer – says that agreement of a lawyer to accept only what might be awarded is unusual - even "unheard of."
That’s not true. The award of fees in civil rights cases is also discretionary. 42 U.S.C. § 1988(a) provides that a "court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs ...." Yet no one regards the agreement of a civil rights lawyer to limit herself to whatever fees a court might award as giving a gift or thing of value or otherwise entering into an unusual arrangement.
WCD's complaint also argues that sec. 757.99's reference to the "reimbursement" of fees means that Justice Gableman would have actually had to pay them or at least be obligated to pay them in order to recover. I am not aware that the statute has ever been construed that way and one could make the similar arguments with other fee shifting statutes. While they tend not to use terms like “reimbursement,” one could argue that, if there is no obligation to pay in the absence of an award, there are no fees. But these laws are not construed in that way and I doubt that the use of the term "reimbursement" would require a different result here.
In any event, that was not the interpretation of Justice Gableman and Michael Best. They seem to have believed that the he could be reimbursed for fees that were contingent upon an award. If they were wrong, that argument would go to the merits of a fee application that was never made and not to whether an arrangement of this type is unusual.
But, even if it is common, was it unethical? I don't think so. SCR 60.05(4)(e) prohibits judges from taking a gift subject to certain exceptions. Before even considering the applicability of the exceptions, it is necessary to determine whether the arrangement with Michael Best was a gift.  SCR 60.01(7) defines a gift as "the payment or receipt of anything of value without valuable consideration."
But there was valuable consideration here. It was Justice Gableman's agreement to retain Michael Best in a potentially fee generating case. Whether or not you think that is "enough" consideration to warrant spending time on the case in the mere hope of recovery is immaterial. Every first year law student learns that courts do not examine whether the consideration underlying a contract is "enough" for whatever is promised in return. We all learn that a mere "peppercorn" will do.
While we may not wish to interpret SCR 60 in the same way - it is possible that there could be sweetheart deals that are tantamount to gifts even though there is some form of consideration - this doesn't seem like a particularly inviting case to do so. Lawyers generally do regard the opportunity to be retained in fee generating cases as valuable. This is is one of the reason that they advertise so heavily to get cases in which they will only be paid if they win. Don't believe me? Consider David Gruber and the Law Offices of Hupy & Abraham. TV time ain't cheap.
Even were that not the case, a lawyer's obligation to consider the need for  provision of legal services to those who could otherwise not afford it militates against an overly expansive interpretation of the term "gift." As noted above, disciplinary proceedings against a sitting justice who lacked adequate representation would not serve the public interest.[iii]
State ethics law governing "state public officials" doesn't change the analysis. Sec. 19.45(2) prohibits state public officials from using their position to obtain a thing of value and sec. 19.45(3) prohibits a state public official from accepting a thing of value if it could reasonably be expected to influence him or be seen as a reward for this past conduct.
Assuming that this provision applies, receiving a thing of value for consideration - particularly pursuant to a fairly common arrangement between lawyers and clients - does not fall within the proscriptions of ss. 19.45(2) or (3). A common arrangement that lawyers and clients typically enter into does not suggest undue influence (19.45(2)) or influence or reward (19.45(3)). To suggest otherwise would bring all sorts of standard business relationships and transactions within the scope of the chapter 19 and its preface makes clear that this was not the legislature's intention.
This is not to say that there aren't issues raised by lawyers representing judges. But those issues are better addressed through recusal to which I turn next.
Will it - or did it - require Justice Gableman to recuse himself? This is a completely different question. A lawyer-client relationship between an attorney and a judge may create an appearance or risk of bias when the lawyer appears before the judge. This may lead to a duty on the part of the judge to recuse. In some instances, that might apply to members of that lawyer's firm. We all talked about this with respect to whether Justice Prosser should sit in a case in which Jim Troupis was involved after Jim had represented the judge with respect to the recount of last spring's Supreme Court election.[iv]
In today's Milwaukee Journal Sentinel, I am quoted as listing the factors that would inform a decision to recuse or not and describing the process as a judgment call. The quote is accurate.
That is the law. There are no clear or objective guidelines for the resolution of these questions. The determination of whether to recuse and how long to do so is committed almost entirely to the Justice who must weight a variety of factors including his or her ability to remain impartial, the extent to which a reasonable person might question his impartiality and the public interest in having a matter considered by the full court. That determination - in matters before the Wisconsin Supreme Court - is final and subject only to correction only in unusual and extraordinary cases by the United States Supreme Court.[v]
The article then refers to the opinion of two law professors, Stephen Gillers and Charles Geyh, who are not Wisconsin lawyers, who said they "believed" that Gableman should have recused himself. "Believed" is the operative word. Their conclusions reflect the way in which those professors thought - at least during the few seconds it took them to respond to a reporter's inquiry - they would have reacted. They may be right but I doubt that they knew all of the facts or spent the type of time on the question that an actual judge does.
In the paper's coverage, Professors Gillers and  Geyh seem to be heavily influenced by the fact that Justice Gableman did not pay by the hour..  But is it really correct that judges may not retain counsel on a contingency fee basis? What if a justice or member of her family was in a car wreck? Do Professors Gillers and Geyh believe that a judge may hire counsel on a contingency basis, but that the lawyer is (indefinitely?) barred from appearing before the judge if the case is lost? What if, as was the case here, the matter involves important constitutional questions? What if, as I assume was the case here, a judge lacks the financial resources to hire competent counsel?
The idea must be that Justice Gableman owes Michael Best a "debt of gratitude" because they agreed to represent him on a contingency basis. But this certainly doesn't comport with our common understanding of what constitutes a gift. If I hire Bill Cannon to represent me in a medical malpractice case and he doesn't get paid because he loses the case, I don't think that he gave me a gift or that I owe him anything. If I retain Walt Kelly to represent me in a civil rights case after the police beat me up and he doesn't get paid because the case gets tossed on summary judgment, I don't owe him a debt of gratitude for working for "free."
The bottom line is that these issues are not easy and not properly the stuff of sound bites and partisan attacks.
Today's article report that Justice Gableman sat on some cases involving Michael Best during a period that included (but was not coterminous with) the period in which he was represented by Michael Best. Should he have recused himself during that period?
Perhaps. I'd want to know precisely when these cases arose, who the actual lawyers were and the public interest in each. The three cases that the article refers to, for example, were argued and submitted to the court after Michael Best's representation of Justice Gableman had ended[vi] - although one had also been argued earlier and then set for additional briefing and reargument.
It does appear, however, that there were other cases in which Michael Best was involved and in which Justice Gableman participated during the period in which he was being represented by the firm. Even if I – or Professors Gillers or Geyh – might have decided to stand down during this period does not mean that someone else might reach a different conclusion.
The one thing I can say is that Michael Best's representation of Justice Gableman does not seem to have much of an impact on his voting which was pretty much split down the middle.[vii] Although the recusal issue goes beyond the issue of actual bias, if, as some intemperate bloggers have charged, Michael Best thought it was "buying a Justice" (and it didn't; it thought it was acting in the public interest), then it got a raw deal.

There is an ethics issue to be raised that does not involve Justice Gableman. SCR 20:1.6 prohibits a lawyer from disclosing information "relating to the representation of a client” without authorization. From press reports and other sources, it appears that the firm disclosed Justice Gableman's fee arrangement to other members of the court and to the press. Did Justice Gableman authorize the disclosure? If not, was there a legal justification to do so? 
I am not accusing anyone of anything and my experience with large law firms is that they do not act rashly. There may well be an explanation and we ought to be willing to hear it if and when the proper time comes.
But, as a member of the bar, I am naturally curious about this type of disclosure of a client confidence. I think it is important to raise it because the public ought to be confident that lawyers will respect the confidentiality of their matters.
Why was it OK to disclose a confidential fee arrangement?


[i] It is possible for a defendant in an action brought under the federal civil rights law to recover fees but there are additional requirements imposed by case law (essentially that the position of plaintiff have been frivolous) that makes it hard to do.
[ii] It would be unfair to Michael Best, however, not to point out that it may also have been motivated by altruism and consideration of the public interest. There were important constitutional issues raised in the Gableman disciplinary matter and it would have been contrary to the public interest for a sitting Supreme Court justice to lack adequate representation. (As noted below, it is apparent that what Michael Best has not gotten was favorable treatment for its clients.)
[iii]Unless Michael Gableman is independently wealthy, he could not afford to hire Michael Best & Friedrich by the hour on a justice's salary. Anyone who thinks otherwise has never seen a bill from a large law firm. However, matters as complex and important as those presented in his disciplinary matter required retention of counsel of comparable talent. Lawyers like that don't come cheap.
[iv] By way of full disclosure, I was also involved in that case although not the recount. Jim Troupis withdrew, Justice Prosser recused himself and I argued the case which is pending.
[v]The reason that I say federal review would be limited is because the opinion in the  controlling case, Caperton v Massey Coal Co., repeatedly stated that a federal constitutional duty to recuse only arises in "unusual," "rare" and "special" circumstances.
[vi] The cases are Metropolitan Milwaukee Ass’n of Commerce v. City of Milwaukee (argued October 1, 2010); Metropolitan Associates v. City of Milwaukee (argued October 7, 2010) and State ex rel. Ozanne v. Fitzgerald (argued June 6, 2011)
[vii] Apparently, Gableman voted for Michael Best's position five times and against it four times. The three other "conservative" justices, Prosser, Roggensack and Ziegler, broke 4-5, 4-4 and 4-4. That difference is not statistically significant. The "liberal" wing - Chief Justice Abrahamson and Justice Bradley and Crooks (to whom the liberal label should be applied lightly) - all went 1-8. This suggests that the outcomes were a matter of philosophy and not some external bias.

Sunday, December 18, 2011

What can the GAB do?

I think that there has been a persistent and fundamental misstatement of the law with respect to the Government Accountability Board's review of recall petitions. For example, in an editorial in  Saturday, the Journal Sentinel editorial board writes as follows:
The GAB won't do their bidding by striking duplicate or phony names from recall petitions. GAB chief Kevin Kennedy says the agency can't do that under state law. It's up to the folks who want to challenge the petitions - presumably Republicans - to point out such problems, Kennedy says.
Blogger Jay Bullock also offers a legal opinion to the effect that the Board is not empowered to strike duplicate or otherwise obviously invalid signatures. Commenters to this blog and other have suggested that, in refusing to do much of anything to vet the signatures, GAB is just "following the law."


I don't think these statements are true. Here's why.

Sec. 9.10 of the statutes governs recall and requires that "[w]ithin 31 days after the petition is offered for filing, the official with whom the petition is offered for filing shall determine by careful examination whether the petition on its face is sufficient and so state in a certificate attached to the petition." It is simply not the case that the GAB must ignore duplicate signatures of accept signatures that are facially invalid because the name or address is illegible or obviously phony. Indeed, the requirement that the petitions be "carefully examined" suggests that the agency may not do this.
Not surprisingly, then, I don't think that GAB Executive Director Kevin Kennedy has never said that the GAB can't strike duplicate or phony names, only that it won't or is unable to get the job done. This doesn't amount to a lack of legal authority, but a claim of a lack of legal obligation, i.e. that an assertion that the duty of "careful examination" of the petitions does not require that it do these things.
.
Whether he is right or not is one of the issues presented by litigation brought against the GAB last week. But the claim that the GAB does not have to root out duplicate signatures and other facially phony or illegible signatures is a different proposition than a claim that in may not do so.

The  view that the GAB has no power to conduct a more rigorous review of the petitions is said to be supported by reference to a challenge process in which challengers to signatures have the burden of proof. But the fact that opponents of recall may challenge signatures does not obviate GAB of its burden to conduct a careful examination or limit its ability to strike facially invalid signatures.

This places the Journal Sentinel editorial board's claim that the GAB won't do the Republicans "bidding by striking duplicate and phony names." The Republicans "bidding" is that the GAB undertake a careful examination of the petition sufficient to determine that it actually has the requisite number of signatures.
I do think that there are some limitations on the GAB's review. It is not required to go beyond the face of the petition, i.e., it does not have to verify addresses or conduct research to determine if an apparently real person "actually" exists or "really' signed the petition. This may, in fact, limit its ability to exclude odd names from apparently valid addresses. Excluding those names may fall on challengers.
But duplicate signatures or those that are obviously false ("Santa Claus, One North Pole Way, Ashwaubenon") are not facially valid.I would also argue that the GAB should not count signatures for which the name or address are illegible. I say that because, for those signatures, there is no way to determine their facial validity.

Will GAB remove these names? It's hard to know but, so far, the indications are that it may not (although some "may" be flagged.) At this point, it is hard to know what GAB intends to do. It's executive director has even been quoted as saying that"the law doesn't require the GAB to read the actual names listed on the petitions." How he reconciles that with the duty of careful examination is unclear.

He has also announced that these things will not be a problem. He may be right. I suspect that is likely to be the case. But there is, of course, no way to know that today and we can't assume the problem away. We surely would not want a referee to announce that he doesn't think the Bears will commit a lot of penalties.

Relying on recall opponents to do what the GAB won't is problematic. As things stand now, recall opponents will have ten days to vet hundreds of thousands of signatures. That is impossible. While that period can and should be extended by court order, I also imagine that recall proponents will do everything that they can to limit the length of any extension.

I and others have called on the Democrats - who claim to have lots and lots of signatures - to allow the process to begin. In response, the only real argument that I have seen is that "they don't have to" and should not give up a tactical advantage -  as if recalling a Governor was some kind of game.

To be sure, some recall supporters have said that the Republicans will just raise spurious challenges but, if the challenges are spurious, they won't succeed. In any event, that argument proves too much. It would justify permitted no review of the petitions.

Others have said that there is "no fraud" with one blogger linking to my argument that there was no fraud in the state supreme court election. But, of course, the reason that I said there was no fraud was that it was, under the circumstances readily detectable and was not detected. I never said that the other side has no right to look.

In this case, a combination of the GAB's preannounced passivity, the volume of signatures necessarily involved in a statewide recall and short statutory review periods may operate to deny one side a meaningful look. That's not OK.

My assumption has always been that public employee unions can get enough signatures to force a recall. They are very powerful - well funded and good at political combat. But the fact that I think that they can and probably will get enough signatures does not mean that it is not is not necessary to verify that they have, in fact, done so.














Friday, December 16, 2011

Michal Gableman and his lawyers, part 1

A couple of things about the dust-up regarding Michael Best's representation of Justice Michael Gableman in ethics proceedings stemming from the Reuben Mitchell case. We've seen a ripple of uninformed commentary. I think the issue is worth discussing but it's not the scandal that some people seem to think it is.

Is the arrangment unusual? Any case brought by the Judicial Commission is a bit unusual, so we can't look at a large universe of judicial discipline cases. But considering cases of all types, the fee arrangement here really isn't uncommon. Because state law provides for the prevailing party to recover fees, this was what lawyers often call a "fee generating case," i.e., a case in which the law provides for payment of fees to the prevailing party or there is  the potential for a monetary recovery from which fees can be paid. These arrangements allow lawyers to take a case in which the client could not otherwise afford to hire them.

We are all familiar with the typical contingency arrangement in personal injury cases. A lawyer provides services (clearly a thing of value) but is not paid unless there is a recovery. The lawyer agrees to do this because, if she does not, the client will be unable to afford to retain her. She makes an economic decision - it is better to have the opportunity to earn a fee than not. (This is one reason that a personal injury lawyer may not take your case if it is too weak or too small.)

We are less familiar with contingency arrangements under which the fee is paid not out of a recovery but because there is a statute that awards fees to a prevailing party. But they are also fairly common. They are, in fact, the bread and butter of lawyers who specialize in civil rights cases.  The economic calculus is the same. The lawyer decides that a shot at fees (even if it means working a case "on the come") is better than no shot at all.

This latter arrangement was apparently the bargain between Justice Gableman and Michael Best. To say that contingency fee arrangements involving defendants are rare does not get us far because there are relatively few statutes permitting the award of attorneys fees to a defendant.* But there was one in this case.

It would be unfair to Michael Best, however, not to point out that it may also have been motivated by altruism and consideration of the public interest. There were important constitutional issues raised in the Gableman disciplinary matter and it would have been contrary to the public interest for a sitting supreme court justice to lack adequate representation. (As noted below, it is apparent that what Michael Best has not gotten was favorable treatment for its clients.)

But, even it it is common, was it unethical? I don't think so. SCR 60.05(4)(e) prohibits judges from taking a gift subject to certain exceptions. Before even considering the applicability of the exceptions, it is necessary to determine whether the arrangement with Michael Best was a gift.  SCR 60.01(7) defines a gift as "the payment or receipt of anything of value without valuable consideration."

But there was valuable consideration here. It was Justice Gableman's agreement to retain Michael Best in a potentially fee generating case. Whether or not you think that is "enough" consideration to warrant spending time on the case in the mere hope of recovery is immaterial. Every first year law student learns that courts do not examine whether the consideration underlying a contract is "enough" for the whatever is promised in return. We all learn that a mere "peppercorn" will do.

While we may not wish to interpret SCR 60 in the same way - it is possible that there could be sweetheart deals that are tantamount to gifts even though there is some form of consideration - this doesn't seem like a particularly inviting case to do so. Lawyers generally do regard the opportunity to be retained in fee generating cases as valuable. This is is one of the reason that they advertise so heavily to get cases in which they will only be paid if they win. Don't believe me? Consider David Gruber and the Law Offices of Hupy & Abraham. TV time ain't cheap.

Even were that not the case, a lawyer's obligation to consider the need for  provision of legal services to those who could otherwise not afford it militates against an overly expansive interpretation of the term "gift." As noted above, disciplinary proceedings against a sitting justice who lacked adequate representation would not serve the public interest.**

State ethics law governing "state public officials" doesn't change the analysis. Sec. 19.45(2) prohibits state public officials from using their position to obtain a thing of value and sec. 19.45(3) prohibits a state public official from accepting a thing of value if it could reasonably be expected to influence him or be seen as a reward for this past conduct.

There is some uncertainty as to whether sec. 19.45 even applies to justices and judges. On the one hand, its strictures apply only to "state public officials" which is elaborately defined in a way that seems to exclude them. On the other, there is a provison authorized the creation of a judicial cose which states judges and justices should comply with "this subchapter." I could go on, but let's assume - as most people seem to - that it applies.

Receiving a thing of value for consideration - particularly pursuant to a fairly common arrangement between lawyers and clients - does not fall within the proscriptions of ss. 19.45(2) or (3). A common arrangement that lawyers and clients typically enter into does not suggest undue influence (19.45(2)) or influence or reward (19.45(3)). To suggest otherwise would bring all sorts of standard business relationships and transactions within the scope of the chapter 19 and its preface makes clear that this was not the legislature's intention.

This is not to say that there aren't issues raised by lawyers representing judges. But those issue are better addressed through recusal to which I turn next.

Will it - or did it - require Justive Gableman to recuse himself? This is a completely different question. A lawyer-client relationship between an attorney and a judge may create an appearance or risk of bias when the lawyer appears before the judge. This may lead to a duty on the part of the judge to recuse himself. In some instances, that might apply to members of that lawyer's firm. We all talked about this with respect to whether Justice Prosser should sit in a case in which Jim Troupis was involved after Jim had represented the judge with respect to the recount of last spring's Supreme Court election.***

In today's Milwaukee Journal Sentinel, I am quoted as listing the factors that would inform a decision to recuse or not and describing the process as a judgment call. The quote is accurate.


That is the law. There are no clear or objective guidelines for the resolution of these questions. The determination of whether to recuse and how long to do so is committed almost entirely to the Justice who must weight a variety of factors including his or her ability to remain impartial, the extent to which a reasonable person might question his impartiality and the public interest in having a matter considered by the full court. That determination - in matters before the Wisconsin Supreme Court - is final and subject only to correction only in unusual and extraordinary cases  by the United States Supreme Court.****


The article then refers to the opinion of two law professors, Stephen Gillers and Charles Geyh, who are not Wisconsin lawyers, who said they "believed" that Gableman should have recused himself.

"Believed" is the operative word. Their conclusions reflect the way in which those professors thought - at least during the few seconds it took them to respond to a reporter's inquiry - they would have reacted. They may be right but I doubt that they knew all of the facts or spent the type of time on the question that an actual judge does.

I think is is overly simple to argue that the duty to recuse should be interpreted aggressively and that a justice (as opposed to a lower court judge) should err on the side of recusal. There are reasons that an elected justice on a law developing court of last resort (that would be the Wisconsin Supreme Court) ought to be careful about recusal.. This is particularly so in Wisconsin, where recusal by a Supreme Court Justice results in less than a full court hearing important cases. Recusal may be unavoidable but the extent to which it frustrates the public's choice of justices to hear these cases is entitled to weight. (I have written about these issues here.)

In addition, an expansive duty to recuse stemming from a lawyer's representation of a justice would make it hard for that justice to obtain counsel. Any lawyer who is good enough to represent a justice in a difficult matter will also be considered good enough to be retained by many others for matters before the Court. If a lawyer, by taking a case, will disable himself and his partners from accepting matters before the Court for a lengthy period of time, many lawyers and firms won't accept such representation.

I don't know how much the nature of the fee arrangement should matter. In the paper's coverage, law Professors Gillers and  Geyh seem to be heavily influenced by the fact that Justice Gableman did not pay by the hour..  But is it really correct that  that judges may not retain counsel on a contingency fee basis? What if a justice or member of her family was in a car wreck? Do Professors Gillers and Geyh believe that a judge may hire counsel on a contingency basis, but that the lawyer is (indefinitely?) barred from appearing before the judge if the case is lost? What if, as was the case here, the matter involves important constitutional questions? What if, as I assume was the case here, a judge lacks the financial resources to hire competent counsel?

The idea must be that Justice Gableman owes Michael Best a "debt of gratitude" because they agreed to represent him on a contingency basis. But this certainly doesn't comport with our common understanding of what constitutes a gift. If I hire Bill Cannon to represent me in a medical malpractice case and he doesn't get paid because he loses the case, I don't think that he gave me a gift or that I owe him anything. If I retain Walt Kelly to represent me in a civil rights case after the police beat me up and he doesn't get paid because the case gets tossed on summary judgment, I don't owe him a debt of gratitude for working for "free."

The bottom line is that these issues are not easy and not properly the stuff of sound bites and partisan attacks.

Today's article report that Justice Gableman sat on some cases involving Michael Best during a period that included (but was not coterminous with) the period in which he was represented by Michael Best. Should he have recused himself during that period?

Perhaps. I'd want to know precisely when these cases arose, who the actual lawyers were and the public interest in each. The three cases***** that the article refers to, for example, were argued and submitted to the court after Michael Best's representation of Justice Gableman had ended.

I'd also want to be careful about doing what Professors Gillers and Geyh seem to have done - deliver snap and impressionistic judgments. I have never been a judge but I have been a referee in attorney discipline cases and the one thing I have learned is that my inital impression might change.

The one thing I can say is that Michael Best's representation of Justice Gableman does not seem to have much of an impact on his voting which was pretty much split down the middle.******
 If, as some intemperate bloggers have charged, Michael Best thought it was "buying a Justice" (and it didn't; it thought it was acting in the public interest), then it got a raw deal.

There is an ethics issue to be raised that does not involve Justice Gableman. To the contrary, it involves Michael Best and its General Counsel, Jonathan Margolies. SCR 20:1.6 prohibits a lawyer from disclosing information "relating to the representation of a client"without authorization. While there are certain exceptions, none seem to apply.

From press reports and other sources, it appears that Mr. Margolies disclosed Justice Gableman's fee arrangement to other members of the court and to the press. Did Justice Gableman authorize the disclosure? If not, how does Mr. Margolies justify it?

I do understand the motivation. Michael Best was worried that earlier statements by one of its partners might be seen as  incomplete. Perhaps if Justice Gableman had authorized the earlier disclosure, a clarification would be in order. But that's not clear. It would depend on what he authorized the firm to say.

If it was not authorized, Mr. Margolies clarification of an earlier disclosure would not seem to be permitted. A lawyer cannot bootstrap himself into disclosure of confidential matters.

Let me clear. I am not accusing anyone of anything and my experience with large law firms is that they do not act rashly. There may well be an explanation and we ought to be willing to hear it if and when the proper time comes.

But, as a member of the bar, I am naturally curious about this type of disclosure of a client confidence. I think it is important to raise it because the public ought to be confident that lawyers will respect the confidentiality of their matters.Why was it OK to disclose a confidential fee arrangement?



*It is possible for a defendant in an action brought under the federal civil rights law to recover fees but there are additional requirements imposed by case law (essentially that the position of plaintiff have been frivolous that makes it hard to do.

** Unless Michael Gableman is independently weatlthy, he could not afford to hire Michael Best & Friedrich by the hour on a justice's salary. Anyone who thinks otherwise has never seen a bill from a large law firm. However, matters as complex and important as those presented in his disciplinary matter required retention of counsel of comparable talent. Lawyers like that don't come cheap.

***By way of full disclosure, I was also involved in that case although not the recount. Jim Troupis withdrew, Justice Prosser recused himself and I argued the case which is pending.

****The reason that I say federal review would be linited is because the opinion in the  controlling case, Caperton v Massey Coal Co., repeatededly stated that a federal constitutional duty to recuse ony arose in "unusual," "rare" and "special" circumstances.

***** Apparently, Gableman voted for Michael Best's position five times and against it four times. The three other "conservative" justices, Prosser, Roggensack and Ziegler, broke 4-5, 4-4 and 4-4. As I That difference is not statistically significant. The "liberal" wing - Chief Justice Abrahamson and Justice Bradley and Crooks (to whom the liberal label should be applied lightly) - all went 1-8. This suggests that the outcomes were a matter of philosophy and not some external bias.













Thursday, December 15, 2011

Beyond PolitiFact

Milwaukee Magazine's Erick Gunn ruminates on the inconsistency of PolitiFact and other fact checking organizations. His point of departure is the apparent inconsistency between its rating of statements that Paul Ryan's "Roadmap" would end Medicare ("pants on fire" said PolitiFact) and Tommy Thompson's claim to have ended welfare (rated as "true.)

 I am sympathetic. "PolitiFact" was developed by the St. Petersburg Times and is operated in partnership with other media outlets including the Milwaukee Journal Sentinel. It's innovation - if that's what it is  -  is a "Truth-O-Meter" resembling what the Weekly Standard's Mark Hemingway calls an "old school instrument gauge" complete with red, yellow and green lights as well as flames for those statement rated "pants on fire."

 I think it's crazy to say that Ryan's plan ends Medicare (the ad showing a Ryan-like figure pushing grandma off the cliff was reprehensible misrepresentation on a par with the worst of our political advertising) and an overstatement to say that welfare reform "ended" welfare. So while I don't agree that the degree of accuracy of the statements is the same, I do think that the characterizations of them represented by PolitiFact's cute little graphics are further apart than they ought to be.

Gunn refers to Hemingway's recent fiscing of "fact checking" in the Weekly Standard. I just got my copy on dead tree and read it. Hemingway makes a convincing case that media fact checking succumbs to the lack of ideological diversity in the traditional media and an unwillingness to treat as opinions those things that are opinion and to allow for the complexity of issues and the limitations of human language and every day discourse. Its simplistic set of conclusions - reflected in PolitiFact as "pants on fire," etc. - themselves require distortion

I have been concerned about this for awhile but was moved to write by PolitiFact's contorted treatment of  a statement by Media Trackers that was clearly "true" as "false."

 Hemingway cites a University of Minnesota study that provides overwhelming evidence that PolitiFact has a pro-Democratic bias. My impression is that the local operation is more even handed but my problem is independent of any claim of bias. It's one thing to vet a statement and let readers know about it's strengths and weaknesses. It's quite another to reduce that analysis to a simple set of conclusions.

The former might be useful. The latter is not. Doing the former does not require the PolitiFact brand. The Journal Sentinel - assuming it has the reporters -  could avoid paying whatever skim it owes to the guys in St. Petersburg.

I understand that railing against the simple mindedness of PolitiFact is like holding back the wind. We like simple little graphics. But I think the problem is deeper than that.

While the customary thing is to rail against the "unwashed" who supposedly want simple answers and others to think for them, I think that PolitiFact is most misused by opinion leaders who are fully aware of its limitations. It is a source of "gotchas" that is I(back to bias) distorted by the ideological proclivities of the journalists who write it - a distortion that is reflected not only in the analysis of particular questions but in the selection of which questions to analyze.

I'd prefer the paper limit itself to straight reporting. As Hemingway points out that wouldn't solve the problems with "fact checking," but it would make them more manageable.

As for PolitFact's rating system, I rate it "Useless."

Show them

Just as I was worried about the difficulties inherent in validating hundreds of thousands recall signatures, Mike Tate and the Democratic Party unwittingly offer a solution.

Mr. Tate claims to have 507,000 signatures. Good work. Let's start to vet them.

If these signatures are almost all valid. If there is nothing to see here, then why not make them available to the public? Given the GAB's self expressed inability to actually validate the signatures and the recall organizers disavowal of any intention to do so, let's start making copies and get to work.

I don't expect that to happen but what could the justification be for failing to do so. I can think of one. Limit the time available for the opposition, media and regulators to do their due diligence.

I can't think of another. I know we'll hear that the Democrats don't want others raising "frivolous" challenges but we can't know that they are frivolous until we see what they are. That someone may make bad challenges to signatures does not justify failing to produce them or allowing adequate time to make sure that they are valid.

I know we'll hear assertions that the signatures are valid. All the more reason to disclose them.

So let the media and recall opponents get to work.

Or explain why you won't.

No fraud if you won't look

Nice column by the indispensable Christian Schneider on National Review's Corner. I have often written about or told the story of one polling place in Milwaukee on election day in 2004. At one point, there were eight lawyers at the Washington Park Library. We had two GOP lawyers, two Democrats, three from various Democratic front organizations and an assistant district attorney. It was a legal dream team. Some of the people there were rather high end. I guess it's cost between $ 3000-3500/hr.

There could have been rampant fraud taking place two feet from us and we would have no way of knowing. As Christian points out, there are plenty of indicia that something has happened - people registered from commericial and noncommericial addresses, huge numbers registered from shelters or places that could not accomodate the number of registrants.

These could be clerical errors. In the case of shelters, there could be a large number of voters. Or it could be indicia of fraud. I have always said that there is probably not wholesale fraud, but there may be enough to make a difference in close elections. That, in my view, justifies the same type of reasonable steps that we use to ensure the integrity of other processes.

Wednesday, December 14, 2011

Oh, cut it out

From WKOW in Madison, this report of a guy who took it upon himself to call signers of Walker recall petitions looking for an argument. He apparently took the names from a television story about the recall efforts.

This is hardly the worst thing that we have seen in Wisconsin over the past year. But it is still a stupid thing. Kevin Stoll,of Hartland, ought to direct his energies in a more positive way. Send letters to the media and post comments on the line. Organize on behalf of the Governor. But disturbing people in their home because they have publicly expressed disagreement is for losers.

I understand that there were organized campaigns to call and even to boycott supporters of the Governor and the recall of Democratic Senators. I know that there are times when decorum inevitably deteriorates in response to tactics on the other side.

But this is counterproductive and unfair. Although Mr. Stoll says that his calls were not hostile, he should just stop. Now.

We also see a report that of a Brookfield man who hollered at recall circulators and grabbed their video recording device. Also very stupid. Rude and uncivil.





Recall problems

So what is the GAB going to do in its review of the recall petitions? Apparently - for sixty days and at a cost of $ 650,000.00 - it's going to read the petitions to see if there is something approximating (but only approximating) a name and Wisconsin address. If the name is highly likely to be fictitious, is something like an "X" or if the name or address are illegible, the signature counts because it could be right.

As an undertaking this is not worthless, but it's not worth much. I appreciate the problem. Over half a million signatures are a boatload.

But, as I blogged before, the GAB has done more than decide that it will (or recognize that can) do nothing. It has made itself part of the game by 1) publicizing the spectre of a "false flag" petition operation for which there is no real evidence, 2) combining that with a statement (later qualified) that it's OK to sign more than one petition (although it also  "suggested" that people not "sign a second time unless they have good reason to believe the first petition they signed was somehow fraudulent”)*, 3) announcing that it will not weed out duplicate signatures and 4) now announcing that it will ignore obvious red flags as to the validity of a signature and even count as signatures as valid when the validity cannot be tested because there is no legible name or legible address.

In response, at least one major player in the recall effort has produced material saying that it is OK to sign more than once. One Wisconsin Now posted on its website that some one may "sign a recall petition even if you have already signed another recall petition (note, however, that only one signature per person will be counted)." A more accurate statement would be that you can sign more than once only if you reasonably believe that a petition that you did sign has been destroyed. There are anecdotal reports of recall circulators telling people who said they have already signed that "it doesn't matter."

This is a problem for GAB. Having allowed itself to be used in an effort to encourage multiple signatures, it has further raised the potential for fraud by announcing that it can do nothing to ensure the integrity of recall petitions.

I understand the problems that the GAB faces. There is no clear prohibition against multiple signatures although the agency eventually got around to appreciate that certain multiple signings might violate the anti-fraud provisions of Chapter 12. There probably is no good way to review hundreds of thousands of signature.

But all of that underscores the need for careful messaging and care in deciding how to proceed. GAB did not do that just as it did not take care in treating this year's senate recall petitions by the partisan affiliation of the target, arguably conferring (however unintentionally) a significant benefit on the Democrats. When you are the referee, you have to be trusted as well as right and, in accomplishing the former, appearance matters.

I am not one to accuse the GAB or its staff of bias. But this could have been handled better. A better approach would have been to say from the outset that, while it is illegal to falsify or destroy recall petitions, it is also illegal to sign more than one petition with the intent of having one's name counted more than once. (While GAB ultimately said that, this was not the initial message.)

Perhaps the mess we are in was unavoidable given the inherent unwieldiness of the recall process. But we now have a situation where the agency and partisans can plausibly be charged with, intentionally or not, encouraging multiple signatures while the agency simultaneously announces that it can't do anything about it. It is inconceivable that, were the parties' position reversed, the Democrats wouldn't be besides themselves. They were all too willing to call fraud and question the presumption of validity in attacking recall petitions targetting Democratic Senators last spring.

So where are we?

There are two answers to the threat posed by invalid signatures. The first is that few people would do such a thing. In other words, we are  to believe that in a world in which political fervor causes legislators to be assaulted, death threats to be made, state senators to openly flout their constitutional duties, doctors to openly behave in a unprofessional manner and recall opponents and proponents to confront each other on the streets, we need not worry about fraudulent behavior -  that the responsible agency has announced it will not police.

We already know that it not the casethat "no one would cheat." At least one person has been found who claims to have intentionally signed approximately eighty recall petitions in an admitted effort to "cheat" in order to get "Walker out."**

Are there enough such people to cause a problem? I don't know but here's a sobering thought. Let's assume that there are 5000 people who sign an average of 25 times. That sounds like a lot of people but it's less than 1% of the number needed to recall the governor. Such a scenario would result in 120,000 invalid signatures - over 20% of the total required. While I would think that many signatures from one person would be caught even by the GAB, that's nor clear and there are other scenarios that would be more difficult to detect. The point is that a relatively small number of people can create a significant problem. When recall proponents are telling people that they can sign more than once and when the GAB says it won't look for duplicates, the problem cannot be dismissed out of hand.

The second argument is to suggest that recall opponents will root out the fraud. This is often coupled with an argument that the validity of nominating and recall petitions are normally entrusted to the parties. The latter statement is true, but less telling when we are dealing with as many signatures as we are here. It is not at all clear that opponents will have the time, resources and access to do what the GAB says it cannot.

Having said this, I don't think it is likely that duplicate or dubious signatures will bring the validity of the recall petitions into question. My guess is that the likelihood of this being determinative is small, but that doesn't mean that there is nothing to worry about. We are contemplating the validity of an effort to overturn the 2010 gubernatorial election. That this process not be tainted by concerns about fraud and uncertainty regarding the validity of recall petitions is critical.


* As noted in the text, GAB's statements on duplicates have evolved. Later statement suggested that one "should" sign more than once only "if he or she has a reasonable belief that the first petition signed will not be turned in." In light of the report (referenced above) that someone has signed approximately 80 petitions, Kevin Kennedy said that intentionally signing more than once in order to inflate the number of signatures (or create the appearance of widespread fraud) would itself be fraudulent. Put them together and you've got a fair description of the law but it took us awhile to get there. As noted above, at least one significant recall organization used the lack of clarity to mislead voters into thinking that they had an unqualified "right" to sign more than once and that someone would ensure that their signature "would be" counted only once. The former is not quite true and the latter has been called into question by the GAB's statement of its unwillingness or inability to cull out duplicates.
** While charges were promptly (and rightly) brought against a person who destroyed a petition and an individual who behaved like a boor in confronting recall circulators in Brookfield, this guy - who has clearly done more to harm the process than they have - apparently remains undisturbed.

Tuesday, December 13, 2011

Shark on Lake Effect

My with Stephanie Lecci on WUWM's Lake Effect cand be found here. We talked about the Governor's initiatives on collective bargaining and the budget along with the aftermath. I closed by hoping that we can learn to disagree robustly - even sharply - but civilly.

A critique of my appearance can be found here - written by someone called Man MKE at Uppity Wisconsin.  The one thing I would point out to our friends at Uppity Wisconsin that the fact that, in economic terms, a union is a cartel is not controversial. A union is a combination of a suppliers of labor who agree to act in concert. The idea is that this will shift the supply curve for labor resulting in some combination of higher wages, lower employment, higher prices and (perhaps) lower profits. Cartelization is the theory behind labor unions and laws authorizing collective bargaining exempts it from law prohibiting agreements in restraint of trade that would otherwise apply.

What I supposedly got wrong is that Scott Walker did not raise taxes because of two small adjustments in the calculation of the homestead earned income credit that, considered alone, raised revenue. But the net impact of Walker's budget was to reduce and not increase taxes. I'll stand by what I said. It is rare that a budget bill will not include things that, standing alone, both increase and decrease revenue. We usually look at the big picture.

I am also apparently wrong in saying that Walker's collective bargaining reform did not save the state money. But here's the thing. You can't argue that there have been 1) devastating cuts that 2) didn't save the state money. We have - by the same measure that the state has used in the past - largely closed a huge budget gap without (as I said) an overall tax increase. Looks like someone saved money somewhere.

I did not say, as Uppity claims, that there were absolutely no reductions in state services. One could hardly expect to close a budget gap of that size without some staffing reductions. But I stand by my statement that those reductions have not been significant. I used the recent DPI survey as an illustration.

Finally, Uppity is upset because it's show skewed right. Really? Three of the five panelist in the opening segment are clearly to the left of center. I am not sure about Mr. Kass and Dave Haynes, who may or may not be more conservative than the average editor on State Street, is known as a fairly straight forward journalist. John Gurda has increasingly given over his column in the Journal Sentinel to paeans to socialism. I'm thinking they did OK.

What I find most interesting in Uppity's response is the reaction to my call for civility. Uppity rejects that call because Republicans "rac[ed] through complex legislation and voting on bills at midnight with constitutionally questionable and very minimal prior notice ...."

Well, no, they didn't. Even if you think that Republicans tried to pass the collective bargaining bill too soon, it wound up being perhaps the most debated bill in the history of the state. (In fact, much of what becomes law in this state is passed "at midnight" and with "very minimal prior notice" as part of the biennial budget.  Act 10 was a bit of an exception.) The venom we see has nothing to do with procedure.

Reading Obama in Osawatomie, part 1

Last week President Obama gave a much vaunted "inequality" speech in Osawatomie, Kansas. It is an awful speech full of the blunt edged demagoguery that is increasingly the President's only rhetorical tool. It is full of misstatements, misunderstandings and irrelevancies. It promises much but delivers little.

So let's undertake a leisurely deconstruction.

Obama suggests that it is heroic for a business to keep its costs higher than they otherwise would be by refusing to produce less expensively overseas:


At a time when the cost of hiring workers in China is rising rapidly, it should mean more CEOs deciding that it’s time to bring jobs back to the United States -- (applause) -- not just because it’s good for business, but because it’s good for the country that made their business and their personal success possible. (Applause.)
Who would disagree with that? Well, I would - and so would most economists. The statement is an illustration of what is so often the difference between conservatives and liberals on economics. The latter focus only on immediate impacts. The former, following Frederic Bastiat, pay attention to what is not so readily seen.

A company that refuses to outsource will "save" American jobs - for a while. Because others will not make the same choice (or foreign competitors will enter the market), the long term result is likely to be a loss of market share or even bankruptcy. Not only the "saved" jobs  - but those of other employees - are gone.

This is the justification for tariffs. If everyone who wishes to import foreign goods must, in essence, pay a fine, then the competitive disadvantage outlined above will be eliminated or reduced.

But the impact of a tariff is to raise the cost of goods to American consumers. This will reduce demand - again reducing employment in the protected firm albeit not by as much as outsourcing - but will also reduce American wealth. Consumers forced to pay higher prices will have less money to spend elsewhere. Other jobs will be lost or not created.

Put another way, Americans will lose the increase in wealth created by buying the same goods at a lower cost. Note that this is  a dead loss. It is not made up by the increased purchasing power of workers who are not replaced. That increased purchasing power is  nothing more than a transfer of funds from consumers to retained workers.

Note that this is true even if the cost advantage is the result of an artificially deflated foreign currency or lower regulatory standards. Either way, the American economy is the net beneficiary of lower costs.

And, of course, neither of these conditions is likely to be sustained over the long run. We once thought that the Japanese were undercutting us with cheap labor. That inevitably changed as Japan became more prosperous. The same thing will happen in places like China and India.

To be sure, outsourcing has a significant (and highly visible) impact on displaced workers. It may be that part of the surplus created by their displacement should be devoted to ameliorating that impact through retraining.

It may also be that certain industries that are strategically significant should be protected for military reasons. But that's an argument that is susceptible to all sorts of mischievous uses.


But Obama's suggestion about what is "good for the country" has it backwards.


Monday, December 12, 2011

Seventh Circuit's decision was not hard

The decision of the Seventh Circuit in Wisconsin Right to Life v. Barland, written by the Hon. Diane Sykes, is well done and clearly correct. It is not groundbreaking in light of the previous decisions of the United States Supreme Court in WRTL v. FEC, FEC v. Davis v. FEC and Citizens United v. FEC.

Those cases make clear that the only justification for restricting support for political speech is the risk of actual or apparent corruption. They also made clear that this justification is not served by restrictions on support for independent expenditures.

In so holding, the Supreme Court rejected the idea that the state may restrict support for political speech by a desire to "level the playing field."

I think that the prior US Supreme Court decisions have it right but, whether or not you agree, the Seventh Circuit was bound to follow the implications of those holdings, That made Wisconsin Right to Life v. Barland an easy case.

So congratulations again to Barbara Lyons, Sue Armacost and the good people at Wisconsin Right to Life, along with their lawyers, James Bopp, and my friend, Mike Dean.

This case does not address the aggregate limit on contributions to candidates. That is a somewhat different case although it may ultimately be resolved on the same rationale.

Saturday, December 10, 2011

Recall the Heisman!

I share the disappointment of my fellow Wisconsinites that Montee Ball lost the vote for the Heisman Trophy. Here is my question: Will our friends in Madison start collecting signatures to recall Robert Griffin III?

Monday, December 05, 2011

Misreading the Journal Sentinel on traffic stops

Both the authors of the Milwaukee Journal Sentinel's article on the percentage of African American and Hispanics stopped by the police and blogging lawyer Ed Garvey make a common error of interpretation.

The Journal Sentinel authors cite the fact that blacks and Hispanics who were searched were no more likely to have contraband than whites who were searched (22% in both cases) as argument against the notion that more frequent stops (and searches) of blacks and Hispanics can be justified on non-discriminatory grounds. They write:


After the stop, Milwaukee police searched the vehicles of black drivers twice as often as whites, or one search for every 12 stops. But police found contraband items in searches involving black drivers at almost the same rate as whites - about 22% of the time.


Garvey, as is his wont, announces that the case is closed.


The first question is whether the black and Hispanic drivers had more contraband. In other words, is there some justification in stopping more Hispanics and blacks. They did not! So, no, there is not.
Both Garvey and the paper have it exactly wrong. The fact that blacks and Hispanics who were stopped and searched  were just as likely as whites who were stopped and searched to have contraband suggests (even if it does not definitively prove) that the stops and searches were not racially motivated.

 Here's why. If the Milwaukee police department were engaged in racial discrimination, i.e., stopping persons for "driving while black and brown" then would expect those searches to yield fewer arrests and seizures than the stops and searches of white drivers who have presumably not been selected for discriminatory reasons. Having stopped blacks and Hispanics for no reason but that they were blacks would be expected to yield fewer seizures of contraband among the population subjected to discrimination because there was no good reason to stop them.

The fact that this was not so - that the likelihood of finding contraband in the cars of black and Hispanic detainees was equal to that of finding it the cars of white detainees - suggests that the criteria used for detention was not discriminatory.

Remember these statistics do not show that blacks and Hispanics in general are no more likely than whites to have contraband in their vehicle. That data might support an inference of discrimination. The comparison here involves only those who were stopped and searched.

This is a fairly common misinterpretation of statistics comparing outcomes among different racial groups. To put it in another context, assume that the UW was discriminating against black applicants. One would expect those blacks who are admitted to have higher credentials than the average white admittee. If the credentials for both groups are the same, an inference of even handed treatment is supported.

I expect the sloppiness from Garvey. The paper should have dug a bit deeper.


Who "screwed up" lighting of the Capitol Christmas Tree?

Senator Robert Jauch was upset about Gov. Walker's decision to move lighting of the state Christmas tree to the morning (as opposed to a noon ceremony). Although Walker denies it, Jauch claims that the change was designed to avoid protesters and then blames the Governor for ruining the tree lighting.
"It's normally a joyous occasion," Jauch said. "He has screwed up one of the finest traditions in the state Capitol." 

A small group of yahoos did decide to use the tree lighting as a vehicle for protest. If Walker was trying to avoid providing a background for political theater, who can blame him. If the result was to "screw up" the ceremony, the perpetrators would seem to be those, apparently including Senator Jauch, who can't put politics aside long enough to light a Christmas tree.

Thursday, December 01, 2011

More odd PolitiFact heads

I think that many of the PolitiFact articles checking claims made by public officials, politicians and others are very good. On the whole, I think they constitute a worthwhile contribution to public discourse - if you read the articles.

But if all you do is glance at the "Truth-O-Meter," PolitiFact can be highly misleading and obscure more than enlighten. The text of the articles is often measured and insightful but I can find no rhyme or reason as to how it chooses which cute little graphic to run as part of the article.

A case in point is last week's column on a report by Media Trackers that recall petition circulators are not certified and that there is no privacy protection for those who sign petitions. Both statements are true as PolitiFact concedes.

Yet it rates the Media Trackers story "mostly false." How can that be?

PolitiFact jumps on one line in the MediaTrackers' story saying that these facts have "been discovered." PolitiFact then reads this to mean "newly discovered" or "newly developed" and rates the story mostly false. That strikes me as idiosyncratic at best and unfair at worst.

The thrust of the Media Trackers article is that persons who sign recall petitions are making their name and address a matter of public record. That is true and the fact that it has always been true doesn't make it false. It's not at all clear that most people know that and it seems like a reasonable thing to report.

While it may not have been "discovered" in thes sense that it has always been true and some people have known it doesn't undercut the gist of the story. To make the "truth" or "falsity" of the story turn mostly on the use of that term is to pick a nit. This is particularly so combined with the head which makes no reference to any claim of novelty only Media Trackers report that signers are "at risk."

Someone who merely scans the headline and Truth-O-Meter might - in fact would if they knew nothing else - conclude that Media Trackers falsely reported that signers of recall petitions are at risk that there names might be accessed and misused. But that's not false.

How concerned a signer should be about this is another matter. I get enough nasty mail and e-mails that my wife sometimes thinks we should be "unlisted." That is a quaint relic of our past. No one is unlisted anymore.

But, in Wisconsin's current environment, we have seen partisans - generally if not entirely on the left - use public record of political support to harass their opponents. No one should do that to people who sign recall petitions but Media Trackers is not wrong to point out that they could.