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Subject: WTF (Yet Another Wisconsin Thread) rss

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So in Wisconsin a judge has halted implementation of Scott Walker's collective-bargaining law. She hasn't overruled it: she's still hearing argument as to that question. But she's temporarily restrained it.

Now, we've all argued whether the law is good or not ad infinitum and I don't really want to start discussing it again, because at this point it seems kind of pointless. But this, on the other hand:

Quote:
"Further implementation of the act is enjoined," said Dane County Judge Maryann Sumi.

She noted her original restraining order issued earlier this month was clear in saying that the state should not proceed with implementing the law. The Walker administration did so after the bill was published Friday by a state agency not included in Sumi's earlier temporary restraining order.

"Apparently that language was either misunderstood or ignored, but what I said was the further implementation of Act 10 was enjoined. That is what I now want to make crystal clear," she said.

But minutes later, outside the court room, Assistant Attorney General Steven Means said the legislation "absolutely" is still in effect.


I don't know what Wisconsin's Rules of Professional Conduct for lawyers are precisely (or whatever equivalent they have; most jurisdictions call them that), but if they're anything like ours, lawyers - like the assistant attorney general - have a duty to uphold the law and to defend the integrity of the courts. Blatant defiance of a court order is exactly the opposite of that.
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But if they listen to what she said they can't do what they want...

Personally, I think this is spinning way, way, way out of control. Gamesmanship over which body publishes legislation to formally enact it. Statements and actions that could easily turn into contempt of court. Public officials apparently willing to ignore the TRO (checks and balances don't exist anymore?). Outrageous statements from the opposition ("lawless reign?" What, did Walker suddenly become King John?).

It's nearly a textbook lesson in how to take a bad situation (budget shortfalls) and turn it into an out of control partisan shit-storm.
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I wish this was an isolated incident, but the State legislature and a series of Governors here in Ohio have ignored a Court Order to revamp school funding for years. Of course, that is more of a not doing anything when told to than doing something when told not to.
 
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I could fall on either side of this depending on particulars of Wisconsin law and the rationale for the injunction. I just don't know enough to say. My view however is that the Union/Democrat side of the argument is irrational and obstructionist. I am therefor skeptical of the injunction and any accusation of impropriety on the part of the Governor or Assistant Attorney General.
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Wrayman wrote:
I could fall on either side of this depending on particulars of Wisconsin law and the rationale for the injunction. I just don't know enough to say. My view however is that the Union/Democrat side of the argument is irrational and obstructionist. I am therefor skeptical of the injunction and any accusation of impropriety on the part of the Governor or Assistant Attorney General.


Are you really in favour of the rule of law being applied selectively?
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Drew1365 wrote:
Yours is the correct view. They are basically trying to undo last November's election.


Which a majority of Wisconsin's citizens now wish they could undo, but let's ignore that and pretend that your feeling that "elections have consequences" isn't just a momentary shift.

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The Democrats want to keep the money flowing in their direction and are using every trick in the book -- and inventing new ones -- to retain money and power for their union masters.


Yes, they're "inventing" tricks like "take it to a judge and ask for a legal opinion." Nobody has ever done this before ever!
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Wrayman wrote:
I could fall on either side of this depending on particulars of Wisconsin law and the rationale for the injunction. I just don't know enough to say. My view however is that the Union/Democrat side of the argument is irrational and obstructionist. I am therefor skeptical of the injunction and any accusation of impropriety on the part of the Governor or Assistant Attorney General.


You're suggesting that the legislative or executive branches of the government should be permitted to ignore the findings of a court of law without either letting them run to their actual conclusion (hasn't happened in this case) and/or without going through the appropriate appeals process?

That's a fairly stunning statement. If the court's rulings don't need to be followed/enforced, then there's little point in having them.

ETA: It also would be a nearly trivial thing to go back and follow the letter of the law while passing the legislation again. Then the court case becomes, quite literally, moot. Then they get to look like they care about constitutional actions and get the law they want on the books officially.
 
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To be perfectly fair - this is a move that all sides use.

Look at the implementation of Obamacare after the federal judge from FL overturned it and effectively told them to stop implementation.

Of course they ignored it (and I am 100% a GOPer would have too). So the judge had to proclaim a second time, no I really meant it - you have 30 days to get your appeal in and your focus better be the appeal.

As far as the original point - Walker needs to play within the rules - he used enough shady (but legal) tactics to push through the original bill that he needs to be seen as playing nice. (again, I will point out Obamacare - had it not been passed in such an under the table manner, I beleive public perception would be much higher)
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Alaren wrote:
This isn't just any lawyer you're talking about, though--and we've discussed in other threads the number of attorneys general who seem to be violating their duty to "uphold the law" through selective enforcement.


Personally, I'd love to see this particular suggestion backed with some facts. While I absolutely agree that selective enforcement occurs, it seems to me that people generally don't tolerate non-enforcement of laws on the books, particularly when the motive is fairly brazenly political. It's also entirely possible that the selective enforcement is the result of decision criteria (like budget and personnel) that create selective enforcement, but lack a significant degree of motive.

I personally think we should have impeached Andrew Jackson for his actions. Constitutional officers that blatantly ignore constitutional requirements, checks, and balances is simply an unacceptable state of affairs. Even the Bush administration altered course when courts found that different regulatory bodies (notably the EPA) weren't doing their jobs on their watch.
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Utrecht wrote:
To be perfectly fair - this is a move that all sides use.

Look at the implementation of Obamacare after the federal judge from FL overturned it and effectively told them to stop implementation.

Of course they ignored it (and I am 100% a GOPer would have too). So the judge had to proclaim a second time, no I really meant it - you have 30 days to get your appeal in and your focus better be the appeal.


This is a bit of finessing of what actually happened, which is that the DoJ expressly asked for a clarification as to whether they could continue implementing while preparing appeal. Compare to Wisconsin, where the Walker administration didn't ask and in fact is still claiming after the judge's clarification that they can implement.
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Alaren wrote:
This isn't just any lawyer you're talking about, though--and we've discussed in other threads the number of attorneys general who seem to be violating their duty to "uphold the law" through selective enforcement.


Selective enforcement simply isn't the same thing as defiance of a court order, Ken, as you should know. (And citing Andrew Jackson for the "long and venerable tradition" of executive overreach doesn't actually make your case.)
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The Florida health care ruling also had a stay issued by the judge that made the ruling pending appeal. So nobody's ignorin' nutin' that they should be doin' somthin' about.
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bjlillo wrote:
The judge who issued the stays should have recused herself. Her husband donated to three of the Fleebaggers and her son is an AFL-CIO rep.


By this standard Clarence Thomas should have recused himself from about fifty or sixty cases of the past year, considering that his wife is a major Tea Party organizer - and should recuse himself from any Supreme Court hearing on, oh, say, Obamacare for the same reason.

Quote:
She also didn't originally issue the stay against the body that published it. They were required to do so by law. The law went into effect on Saturday.


Except that the body that published it, the Legislative Research Bureau, isn't the body that publishes the law to make it officially recognized as law. The chairman of the LRB specifically stated that the LRB's publication of the law did not cause the law to take effect.
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bjlillo wrote:
The judge who issued the stays should have recused herself. Her husband donated to three of the Fleebaggers and her son is an AFL-CIO rep.


And that's a conflict for her how?

Quote:
She also didn't originally issue the stay against the body that published it. They were required to do so by law. The law went into effect on Saturday.


It would appear that those in the WI legal field and government don't agree with you. Specifically the head of the Reference Bureau, but others as well.

Since her order stated that the law should be prevented from going into effect, it seems this would violate the court's order. Which is what's being discussed. The person who started this particular brouhaha seems to be the head of the Senate. I don't know his background, but it strikes me that ultimately a court will end up deciding whether it's in effect.

Do you think that the Governor and others in the executive branch should just be able to ignore the courts?
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bjlillo wrote:
No, that's not the same standard. It's not even close to the same thing.


You're right, because his is worse: his spouse (which is all that counts for a conflict of interest - other relatives don't) actively makes her living opposing certain political and government initiatives. All Judge Sumi's spouse has done is donate to political interests, evidencing personal support, which does not connote a conflict of interest.
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Alaren wrote:
You've characterized this as "defiance of a court order" and yet you have provided no evidence that the court order itself is being defied


Er, the Wisconsin state government is actively implementing the law by refusing to collect union dues (which is what the law does, among other things, and the first immediate effect of it). That seems pretty cut and dried to me: they were ordered not to implement the law by the judge, and they did.
 
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http://host.madison.com/wsj/news/local/govt-and-politics/art...

Quote:
Sumi made her ruling at the end of a day of testimony in the open meetings lawsuit brought by Dane County District Attorney Ismael Ozanne. The hearing is scheduled to conclude on Friday.

"Now that I've made my earlier order as clear as it possibly can be, I must state that those who act in open and willful defiance of the court order place not only themselves at peril of sanctions, they also jeopardize the financial and the governmental stability of the state of Wisconsin," Sumi said.

Her statement appeared to be a warning to state agencies, such as the state Department of Administration, that have begin implementing the union bill despite a temporary restraining order that Sumi issued on March 18 and the unsettled question about whether publication of the law by the Legislative Reference Bureau on Friday was enough to implement the law.

"Apparently that language was either misunderstood or ignored, but what I said was, ‘the further implementation of 2011 Wisconsin Act 10 is enjoined,' " Sumi said. "That's what I now want to make crystal clear."
 
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Alaren wrote:
You're not thinking like a lawyer. What is the difference between positive and negative duty? If the old law says "collect dues" and the new law says "don't collect dues," the new law is "in effect" without technical implementation if you simply fail to enforce the old law.


Except that this interpretation basically fails the moment the individuals supposedly not implementing the new law say they've implemented the new law. Any lawyer knows that fancy interpretation of law only gets you so far in most cases, and the "why are you hitting yourself" school of legal argument's range is quite short.
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Alaren wrote:
mightygodking wrote:
...but if they're anything like ours, lawyers - like the assistant attorney general - have a duty to uphold the law and to defend the integrity of the courts. Blatant defiance of a court order is exactly the opposite of that.


This isn't just any lawyer you're talking about, though--and we've discussed in other threads the number of attorneys general who seem to be violating their duty to "uphold the law" through selective enforcement. It's a common and basically legal approach to the struggle between the three branches of government. Telling the courts to piss off is a long and venerable tradition of the American executive; in Worcester v. Georgia for example, President Andrew Jackson famously said, "John Marshall has made his decision; now let him enforce it."

The result (the "Trail of Tears") was not pretty, to say the least, so points about rule of law should not be brushed aside, clearly. You may well be correct that it is a bad idea for the executive to ignore a court order. And as you say, other arguments regarding the law have been hashed out here already.

But your attempt to make this a professional responsibility issue is one I would reject, at best, as gamesmanship.


Couldn't disagree with you more. Anyone holding a license to practice law is subject to discipline from the issuing body for violations of legal ethics. While ignoring a court order might well be a political calculation and raise a polical question, this doesn't discount the consequences of the action. Any lawyer who ingores a court order risks losing his/her ability to practice law or some other sanction.

We take an oath. Violating that oath regardless of our rationale has consequences. Assuming political office is not a shield against the ethical standards of the various state bars.

Given the actions of the Walker administration ala the bill to reduce/remove union bargainning rights, the decision to stop enforcing the prior, properly enacted law, is pretty clearly an attempt to circumvent the court order. That's gamesmanship.
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Alaren wrote:
Rulesjd wrote:
Couldn't disagree with you more.


As is your right. Of course, it is also your right to publicly air your poor understanding of legal ethics and the intended purposes thereof--a right you have exercised admirably here.

Rulesjd wrote:
Anyone holding a license to practice law is subject to discipline from the issuing body for violations of legal ethics.


Indeed. But what is the violation in this case? A county judge enjoined "further implementation" of the law pending further argument, and an assistant attorney general said that the law was "absolutely" still in effect... no clear violation there, as no ruling has been made (let alone made final) regarding the validity of the law. Furthermore, it's not at all clear to me that the county judge has the power to completely enjoin the law (I am not familiar with the structural formalities of Wisconsin's court system), and a quick read-through of Wisconsin's Rules of Professional Conduct uncovers no clear violation either.

OP mentions "a duty to uphold the law and to defend the integrity of the courts" but in this case the argument would be that those duties conflict: from the perspective of the attorney general, the judge is failing to uphold the law. When genuine disagreement exists between the courts and the legislature, the last thing the court should start doing is threatening to sanction and/or disbar its political enemies. To my ears that sounds like a quick way to convince the legislature to revoke the court's powers of regulation over attorneys.

This would be a much, much bigger problem for the courts than a couple of executive-branch lawyers back-talking a county judge.

Rulesjd wrote:
Any lawyer who ingores a court order risks losing his/her ability to practice law or some other sanction. We take an oath. Violating that oath regardless of our rationale has consequences. Assuming political office is not a shield against the ethical standards of the various state bars.



Alright, then. I've given you the link. Make a case. From my perspective, you and Chris have argued that the assistant attorney general should have his ability to make a living as a lawyer threatened because he is zealously advocating the state's position, which is his job. I'm telling you both that you're dead wrong--but feel free to point to chapter-and-verse plus actual conduct (as opposed to pure speech) that supports your outrageous position.

I don't think you'll be able to though, and here's why: the rules of professional conduct exist primarily to prevent lawyers from taking advantage of the relative ignorance of regular people. Compared with the body of rules addressing lawyerly duty to clients, rules regarding the lawyer's duties as an agent of the court are practically an afterthought (and mostly there to bounce kooks and crazies who were just lucid enough to make it all the way through the bar exam).

In this case, there are no lawyers taking unfair advantage of client ignorance or engaging in outrageous courtroom conduct. No one is stealing client funds, sleeping with opposing counsel, impugning the court's integrity, concealing relevant evidence... we have a legitimate disagreement between two branches of government, and a tug-of-war over the primacy of the lawyerly duties involved (uphold the law vs. respect the courts). The suggestion that the RPC needs to be involved is asinine in the extreme; what possible good could come of it?

Because I assure you that this is the kind of behavior you don't want the law of unintended consequences to turn back on you. There has been no articulation of any reason to discipline this assistant attorney general beyond pure, callous, vindictive partisanship, and your assertions to the contrary are shameful.


Rather aggressive and arrogant response Kenneth. Having been a practicing attorney in California, with one the arguably most difficult bar exams in the country, I feel at least qualified to discuss the subject despite your opinions.

You might want to read the Wisconsin Rule of Professional Conduct and actually think about them before pronouncing what they don't say. SCR 20:8.4 (g) specifically states that it is an act of misconduct to violate the attorneys oath. That oath is laid out here:

"SCR 40.15 Attorney's oath.

The oath or affirmation to be taken to qualify for admission to the practice of law shall be in substantially the following form:

I will support the constitution of the United States and the constitution of the state of Wisconsin;

I will maintain the respect due to courts of justice and judicial officers;

I will not counsel or maintain any suit or proceeding which shall appear to me to be unjust, or any defense, except such as I believe to be honestly debatable under the law of the land;

I will employ, for the purpose of maintaining the causes confided to me, such means only as are consistent with truth and honor, and will never seek to mislead the judge or jury by any artifice or false statement of fact or law;

I will maintain the confidence and preserve inviolate the secrets of my client and will accept no compensation in connection with my client's business except from my client or with my client's knowledge and approval;

I will abstain from all offensive personality and advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which I am charged;

I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed, or delay any person's cause for lucre or malice. So help me God."

Whether or not you understand the authority of a county judge, it is clear that the Walker administration at first decided to implement the new law in violation of the order and then changed their minds. This at least implicity acknowledges the judge DID have authority. The correct recourse when one disagrees with a judge is to appeal to a higher court. Alternatively , they could have followed the judges advice and repassed the legislation curing the technical grounds on which it was overturned. Refusing to enforce prior legislation in this situation is at least arguably flouting the judicial order.

Since you don't appear to be an expert on this subject you will understand if I reject your simple pronouncement that I am wrong.

You might try a little more courtesy in debating your position.

 
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bjlillo wrote:
mightygodking wrote:
By this standard Clarence Thomas should have recused himself from about fifty or sixty cases of the past year, considering that his wife is a major Tea Party organizer - and should recuse himself from any Supreme Court hearing on, oh, say, Obamacare for the same reason.


No, that's not the same standard. It's not even close to the same thing.


I'm really confused by this. I would think Thomas has a much clearer potential conflict since the income his wife earns (over $700K IIRC) is income for his household. How is that "not even close" to "husband donated money and kids belong to a union"?
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Alaren wrote:
From my perspective, you and Chris have argued that the assistant attorney general should have his ability to make a living as a lawyer threatened because he is zealously advocating the state's position, which is his job. I'm telling you both that you're dead wrong--but feel free to point to chapter-and-verse plus actual conduct (as opposed to pure speech) that supports your outrageous position.


I'd appreciate it if the protagonists could clarify exactly what's being argued here. My impression is not that they're arguing that the AAG can't "zealously advocate" the state's position but rather that he can't implement a law while it's under a court stay order. Similarly, it seems to me that there is a difference between selective enforcement (a necessity, since infinite enforcement resources don't exist) and going against a specific court order.

I'm the first to admit that I'm not a legal expert from from this outsider's position it seems that you're arguing past each other.

Edit to add: A key question from my perspective is what the AAG means when he says the law is still in effect. If he means that he still considers it a legally passed law that is currently under judicial review, that's quite different from if he means (as some seem to interpret him) that they're going to continue implementing it in defiance of the order.
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Chad_Ellis wrote:
Alaren wrote:
From my perspective, you and Chris have argued that the assistant attorney general should have his ability to make a living as a lawyer threatened because he is zealously advocating the state's position, which is his job. I'm telling you both that you're dead wrong--but feel free to point to chapter-and-verse plus actual conduct (as opposed to pure speech) that supports your outrageous position.


I'd appreciate it if the protagonists could clarify exactly what's being argued here. My impression is not that they're arguing that the AAG can't "zealously advocate" the state's position but rather that he can't implement a law while it's under a court stay order. Similarly, it seems to me that there is a difference between selective enforcement (a necessity, since infinite enforcement resources don't exist) and going against a specific court order.


This.
 
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Alaren wrote:
That's why I'm even participating in this thread. Because neither you nor Chris seem to actually care whether this AAG has done anything worthy of discipline; he's advocating a position you dislike


Ken, he was not "advocating a position." If the AG wants to say "the law should be like this," he can do that all he wants and nobody will say boo to a goose about his professional conduct. But he wasn't simply advocating a position; he was defying a court order, and not just via selective performance but indeed was openly and pointedly defying it and saying so publicly.

If you want to make the argument that what he was doing was a form of civil disobedience, we can discuss that, but part of civil disobedience is the truth that you're breaking the law (and, in this case, the rules of professional conduct as well) and the consequences may well fall on your head.

There's a reason he backed down and stopped implementing the law while it was stayed: he realized he didn't have any wiggle room to continue defying the order, that he never had any in the first place, and didn't want to be, at an absolute minimum, jailed for contempt.
 
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Alaren wrote:
You have yet to establish which exact rule specifically was being broken at which exact point.


I've already been quite clear on this: failure of a lawyer to abide by a court order is a failure to uphold the authority of the courts and to uphold the law.

Quote:
But hey, why bother? That no sanctions have in fact been leveled is a pretty solid indication that no meaningful rule-breaking occurred


Because he stopped flirting with breaking the rules, Ken. I actually agree with you that at this point complaint on the grounds of professional discipline would be overkill; a lawyer tried to wiggle around what was acceptable, got slammed down and retreated. That happens all the time.

When this thread started, the Wisconsin AG had not yet retreated from his (clearly erroneous) stance that despite there being a court order preventing him from doing something that he could in fact do it anyway. If he had not stopped (and at the time he had not), I think the question of professional sanction entirely appropriate in the hypothetical that he continued his defiance. You're mistakenly suggesting - or not, I dunno - that Les and I are arguing that now, after the flirtation is done, that professional discipline is appropriate. That is not the case.

Quote:
Furthermore, that you continue to maintain it is a matter for professional discipline, while persistently ignoring my arguments for why this would be a very bad idea from a policy perspective


Ken, I'm not going to give any weight to your argument that "strongly advocating" for a given political position should encompass open defiance of the courts, on the grounds that that is simply ludicrous. Similarly, your argument that open defiance of the courts should be allowed to let slide on the basis that, were the courts to assert that the defiers were acting improperly, said defiers would then decide to start tearing down the system of law is similarly pointless in that it reduces the power of the courts to a meaningless trifle before the legislature.
 
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