Category Archives: Law

Court Reins In Governor’s Veto Power

Good.

A majority of justices could not agree on a rationale for why the three Evers vetoes were unconstitutional, finding generally that they created new law that the Legislature did not intend. The complex, 146-page ruling was limited to the four vetoes that were challenged and did not rein in the ability of future governors to make partial vetoes.

[…]
Two of the vetoes were overturned by the five-justice conservative majority, with two liberal justices dissenting. But a third veto that was overturned 4-3 saw conservative Chief Justice Pat Roggensack side with the two liberals on the losing side. And in upholding one Evers veto, three conservatives joined with two liberals in support.

Court Upholds Law

I must say, AP reporter Scott Bauer has gotten worse and worse. He doesn’t even attempt to write an unbiased story. Check out the overtly loaded language. But as for the story itself, good.

MADISON, Wis. (AP) — The conservative-controlled Wisconsin Supreme Court on Thursday upheld Republican-authored lame-duck laws that stripped power from the incoming Democratic attorney general just before he took office in 2019.

The justices rejected arguments that the laws were unconstitutional, handing another win to Republicans who have scored multiple high-profile victories before the court in recent years.

The 5-2 ruling marks the second time that the court has upheld the lame-duck laws passed in December 2018, just weeks before Gov. Tony Evers and Attorney General Josh Kaul, both Democrats, took office. The actions in Wisconsin mirrored Republican moves after losing control of the governors’ offices in Michigan in November 2018 and in North Carolina in 2016. Democrats decried the tactics as brazen attempts to hold onto power after losing elections.

[…]

Thursday’s ruling involved a case filed by a coalition of labor unions led by the State Employees International Union. The coalition argued that the laws give the Legislature power over the attorney general’s office and that this violates the separation of powers doctrine in the state constitution.

The laws prohibit Evers from ordering Kaul to withdraw from lawsuits, let legislators intervene in lawsuits using their own attorneys rather than Kaul’s state Department of Justice lawyers, and force Kaul to get permission from the Legislature’s Republican-controlled budget committee before settling lawsuits.

Republicans designed the laws to prohibit Evers from pulling Wisconsin out of a multistate lawsuit challenging the Affordable Care Act, also known as Obamacare, and to ensure that they have a say in court if Kaul chooses not to defend GOP-authored laws.

Court Rules in Favor of Religious Freedom

Excellent.

(CNN)The Supreme Court on Wednesday threw out two job bias lawsuits brought by teachers against their religious employers, reaffirming that religious institutions and schools have a First Amendment right to select their employees.

It’s the latest case to come before the court exploring the relationship between church and state, and in their 7-2 ruling, the justices clarified the class of employees who are barred from suing their religious employers under anti-discrimination law.
[…]
“Today’s important decision does not mean, as some suggest, that religious institutions are above the law or that they have a license to discriminate,” said Richard Garnett of Notre Dame Law School, who filed a brief in support of the schools.
“It means, instead, that a crucial dimension of our Constitution’s religious-freedom guarantee is that civil powers are limited to civil matters and that state lacks authority to second-guess religious decisions and doctrines,” he added.

Middleton Enacts “Unlawful” Restrictions

There is a huge disconnect between the draconian laws that we are expected to obey and fact that the government is letting protesters and rioters ignore all of the laws. Equal application of the law is a fundamental pillar of a free society. And yes, Middleton does not have the legal authority to enact these restrictions.

MIDDLETON, Wis. (WMTV) – The Tavern League of Wisconsin is calling restrictions on bars and restaurants “unlawful,” after public health officials announced a new emergency order Wednesday to slow the spread of coronavirus.

At restaurants, the restriction (Emergency Order #7) brings indoor dining capacity down from 50 percent to 25 percent. Bars can no longer allow indoor dining, only takeout and outdoor seating with physical distancing.

Janel Heinrich, the director of Public Health Madison & Dane County, said that the county has experienced a high number of cases recently. She also said that contact tracers found much of the spread has come from public gatherings, restaurants and bars.

Supreme Court Ruling a Win for School Choice

Excellent.

In a 5-4 decision with the conservative justices in the majority and the liberal justices dissenting, the court backed a Montana program that gave tax incentives for people to donate to a scholarship fund that provided money to Christian schools for student tuition expenses.

The ruling, written by Chief Justice John Roberts, represented the court’s latest expansion of religious liberties, a priority of its conservative majority in recent years.

The court sided with three mothers of Christian school students who appealed after Montana’s top court invalidated the tax credit for violating the state constitution’s ban on public aid to churches and religious entities. Thirty-eight states have such constitutional provisions.

The justices faulted the Montana Supreme Court for voiding a taxpayer program merely because it can be used to fund religious entities, saying such action violates the U.S. Constitution’s First Amendment protection for the free exercise of religion.

“A state need not subsidize private education,” Roberts wrote. “But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.”

Court Rules in Favor of Election Integrity

Excellent.

MADISON – In a sweeping decision that took more than three years to come out, a panel of federal judges on Monday reinstated limits on early voting and a requirement that voters be Wisconsin residents for at least a month before an election.

The three judges also banned most voters from having absentee ballots emailed or faxed to them and told a lower court to continue to tweak the system the state uses to provide voting credentials to those who have the most difficulty getting photo IDs.

The unanimous decision by the 7th Circuit Court of Appeals in Chicago was mostly a setback for the liberal groups that challenged Wisconsin’s voting laws, but it did give them some victories. The appeals court upheld a decision that allows college students to use expired university IDs to vote and barred the state from requiring colleges to provide citizenship information about dorm residents who head to the polls.

Although there was a down side.

In one victory for those who brought the lawsuit, the appeals court agreed with Peterson that students could use expired college IDs to vote. And the appeals court also went along with the lower court ruling that said the state could not require universities to provide citizenship information about students living in dorms. (Such a requirement would violate federal privacy laws for students, the appeals court found.)

Monday’s decision also dealt with a separate challenge to the voter ID law that was heard by U.S. Judge Lynn Adelman in Milwaukee. The appeals court had already blocked a ruling by Adelman that would have allowed people to vote without an ID if they signed an affidavit. It gave a final reversal to Adelman’s decision with Monday’s ruling.

SCOTUS Rules on Sex Discrimination

I haven’t had a chance to read all of the ruling, but it looks like a good one.

The Supreme Court ruled on Monday that workers cannot be fired for being gay or transgender in a major win for members of the LGBT community.

The 6-3 holding, authored by Justice Neil Gorsuch, a conservative appointed by President Donald Trump, is a blockbuster development in the history of gay rights in the United States.

“An individual’s homosexuality or transgender status is not relevant to employment decisions,” Gorsuch wrote. “That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

While workers in about half the country were protected by local laws that prohibit discrimination based on sexual orientation or gender identity, there was no federal law that explicitly barred LGBT workers from being fired on that basis.

Gorsuch was joined by Chief Justice John Roberts, a fellow conservative, and the four members of the court’s liberal wing, Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. Justices Samuel Alito, Clarence Thomas and Brett Kavanaugh dissented.

WILL Files Petition to Prevent Ballot Harvesting

Good.

The News: The Wisconsin Institute for Law & Liberty (WILL), on behalf of a group of petitioners, submitted a rules petition to the Wisconsin Elections Commission (WEC) asking the state agency to promulgate a rule that makes clear that the practice of ballot harvesting is illegal in Wisconsin. The Wisconsin Elections Commission is required by state law to respond to WILL’s petition within a “reasonable period of time.”

[…]

WILL’s Rules Petition: Under Wisconsin law, only voters are allowed to request absentee ballots and voters are responsible for returning the ballot. This is the law except in very specific circumstances such as hospitalization. WILL, on behalf of the petitioners, is asking the Wisconsin Elections Commission to promulgate a rule that makes clear:

  • Third parties cannot request an absentee ballot on behalf of a voter
  • Third parties cannot collect and submit absentee ballots on behalf of a voter

The Wisconsin Elections Commission is required to consider the rules petition and either begin the rulemaking process or provide a response explaining why they are rejecting the petition.

Officer Who Killed George Floyd is Arrested

Good. Let justice be done.

The former Minneapolis police officer seen in a video with his knee on George Floyd’s neck before the unarmed black man died this week was taken into custody Friday by state authorities, according to John Harrington, commissioner of the Minnesota Department of Public Safety.
The officer, Derek Chauvin, was taken into custody by the Minnesota Bureau of Criminal Apprehension as fires continued to burn from violent protests overnight as demonstrators demanded justice for Floyd.

Zuckerberg Breaks with Dorsey

Interesting 

Facebook founder Mark Zuckerberg has criticized competitor Twitter for its decision to fact-check tweets from President Donald Trump.

In an interview with Fox News due to be broadcast on Thursday, Zuckerberg claims that it is not the place of private companies to interfere in what people say online.

Twitter CEO Jack Dorsey immediately fired back saying that the site would continue to call out ‘incorrect or disputed information’ about elections shared by users.

The spat between Zuckerberg and Dorsey came after Trump said he will sign some sort of ‘social media’-focused executive order on Thursday amid the rift with Twitter over the fact-checks on his tweets.

Trump To Issue Executive Order to Clarify Rules Around Liability for Internet Platforms

I’m very wary of things like this.

The order would push the Federal Communications Commission to write rules on when and how platforms can remove content from their platform and still maintain liability protection granted them under Section 230 of the Communications Decency Act. The law as it stands largely exempts those publications from being held liable for much of the content on their websites.

The working order, which cites Twitter by name, would encourage the Federal Trade Commission to take action against companies that engage in “deceptive” acts of communication.

Outside of the current kerfuffle between Trump and Twitter, this debate has a deep history with huge implications. The debate revolves around the legal responsibility of people and companies who provide information platforms, carry/transport information, and perhaps operate a monopoly. Let’s take this blog, for example. Am I legally liable for what a commentator writes? In general, no. Part of what bolsters that relative protection is the fact that we don’t censor comments here. With rare exception – direct threat, spam, etc. – commentators can write whatever they want. If we got in the business of curating or filtering comments, then that liability potential increases. If I am curating the content, do I then own it? Someone might argue “yes.”

The discussion has roots back to medieval common carriage laws and norms. Here’s a great paper on some of the history and modern implications. It was written as part of the net neutrality debate, but has application here. Here’s a part:

Looking at the matter from a fresh perspective, it seems important to look at the entire regime of common carriage, not simply interconnection and non-discrimination—or even rate regulation and liability. And what emerges is a bargain that gives special legal liability in return for the carrier refraining from using some market power to further some public good. On one hand, the carrier gives away the right to discriminate on the basis of sender or content and in return receives immunity for liability for the content therein. On the other hand, the carrier agrees to moderate monopoly power against competitors, perhaps provides access to competitors in return for immunity from antitrust suit. Similarly, the increased standard of care reflects the market power of dominant communication and transportation firms enjoy vis à vis individual customers—and can be seen as a return for the privileges common carriers enjoy such as right of access etc.

In this regard, common carriage is a deal. The regulated industry has something the government wants—a universal communications platform that provides a valuable public good, notably free speech to further democratic deliberation. But, in return, the regulated industry receives preferential treatment from the government.

In the case of Twitter and Facebook, Trump is arguing, in his clumsy way, that those companies have surrendered their liability for content when they got into the business of regulating speech. If Twitter, for example, is going to curate, edit, and regulate content, do they also get to continue to enjoy liability protections for that content? If that’s the case, then shouldn’t such liability protections be extended to anyone to generates content?

Twitter, Facebook, and the like are going to have to make a choice. Either they can be agnostic platforms that carry content created by other people, in which case they enjoy certain legal liability protections for that content, or they can be content creators that create, modify, and curate content for consumption based on achieving their political or business objectives, in which case they are liable for the content. They can’t have it both ways.

Federal Lawsuit Filed Against Local Lockdown Orders

Yes, they are unconstitutional. We have to nip in the bud the notion that our government can completely strip us of our civil rights based on a health scare – or anything else for that matter.

MADISON, Wis. (AP) — Business owners, candidates for office, a pastor and one of the organizers of last month’s “reopen Wisconsin” protest at the Wisconsin Capitol have filed a federal lawsuit alleging that local stay-at-home orders are unconstitutional.

The lawsuit, filed by 17 Wisconsin residents Wednesday in federal court in Milwaukee, challenges the local orders that took effect after the state Supreme Court last week tossed out Gov. Tony Evers’ statewide “safer at home” order as unconstitutional. The new lawsuit names 21 state and local Wisconsin public safety and health officials, including Evers and all members of the state elections commission, as defendants.

The lawsuit asks the judge to declare the local orders unconstitutional and void them all.

Lawless bureaucrats must be held to account

I don’t know about you, but I’m pretty disgusted how high-level bureaucrats in Washington and Madison are never held accountable when they break the law. Shouldn’t losing their job be the least thing that should happen when they abuse their power and break the law? I think so and argue the case in my latest column for the Washington County Daily News today. Here’s a taste. Go pick up a copy!

What happens now? When a normal Wisconsinite is caught breaking the law, they are fined or jailed. When Palm’s illegal order was being enforced, Wisconsinites were being ticketed and arrested for doing things as simple as eating in a restaurant or playing basketball in a park. Will Secretary-designee Palm be held accountable for breaking the law?

Will her boss, Governor Evers, take responsibility for his employee’s blatant flaunting of the Constitution and the law?

So far, neither Evers nor Palm have indicated that they will accept any responsibility for violating the law. They will continue to cash their full paychecks and direct their opulent staffs courtesy of the very citizens they sought to oppress. They have committed to continue on without a modicum of contrition for their unlawful actions.

As an elected official, the voters will have to decide if Governor Evers should be held to account at the next election or sooner. But as an unconfirmed appointed secretary, the Wisconsin state Senate should immediately move to reject Palm’s confirmation so that the people of Wisconsin will no longer be subject to her lawless proclivities. She is clearly unfit for public service.

Rwandan Genocide Fugitive Captured

Wow. It’s good to see some justice.

PARIS, May 17 (Reuters) – Rwandan genocide fugitive Felicien Kabuga, whose arrest on Saturday ended 26 years on the run, was a frail, elderly man who said little to neighbours and who would take a stroll most days outside of his apartment in a well-off suburb of Paris.

Kabuga, 84, Rwanda’s most wanted man with a $5 million bounty on his head, had been living under a false name in a five-storey apartment block in Asnieres-sur-Seine with the help of his children, according to France’s justice ministry.

Police detained him early on Saturday.

“I would see this man going out, maybe once a day, alone or with someone,” said Jean-Yves Breneol, 72, a resident in the same block where Kabuga lived. “He wouldn’t say a word, nothing.”

Breneol said he thought Kabuga might have lived in the building for four or five years.

[…]

A Hutu businessman, he is accused of creating and making contributions to a fund that raised finances to pay the youth militias that would slaughter some 800,000 Tutsis and moderate Hutus, as well as importing huge numbers of machetes, according to the UN tribunal’s indictment.

Local Governments Rescind Unconstitutional Orders

Some sense is prevailing outside of Milwaukee and Madison.

MADISON, Wis. (AP) — Some local health officials in Wisconsin rescinded their stay-at-home orders Friday after attorneys warned they could be vulnerable to legal challenges after the state Supreme Court wiped out Gov. Tony Evers’ statewide order.

But the Wisconsin Counties Association said after Wednesday’s ruling that it was unclear whether whether local orders mimicking the statewide mandate would stand up in court. By Friday, health officials in Kenosha, Brown, Manitowoc and Outagamie counties had dropped orders, as did the cities of Cudahy and Appleton. State Department of Health Secretary

“While the WCA and outside legal counsel did not opine that counties were outright prohibited from taking such actions, they did indicate that overall, the legal basis to do so is likely weak,” Brown County’s attorney, David Hemery, said in a letter Friday to the county’s health officer, Anna Destree.

Wisconsin’s largest and most liberal counties, Milwaukee and Dane, home to about 1.5 million of the state’s 6 million residents, left their orders in place.

“Emergency Order 28 is declared unlawful, invalid, and unenforceable.”

Hey look. The Supreme Court agrees with me. Go about your business, folks.

IV. CONCLUSION

¶58 We conclude that Emergency Order 28 is a rule under the controlling precedent of this court, Citizens for Sensible Zoning, Inc. v. DNR, 90 Wis. 2d 804, 280 N.W.2d 702 (1979), and therefore is subject to statutory emergency rulemaking procedures established by the Legislature. Emergency Order 28 is a general order of general application within the meaning of Wis. Stat. § 227.01(13) which defines “Rule.” Accordingly, the rulemaking procedures of Wis. Stat. § 227.24 were required to be followed during the promulgation of Order 28. Because they were not, Emergency Order 28 is unenforceable.21 Furthermore, Wis. Stat. § 252.25 required that Emergency Order 28 be promulgated using the procedures established by the Legislature for rulemaking if criminal penalties were to follow. Because Palm did not follow the
law in creating Order 28, there can be no criminal penalties for violations of her order. The procedural requirements of Wis. Stat. ch. 227 must be followed because they safeguard all people.

¶59 We further conclude that Palm’s order confining all people to their homes, forbidding travel and closing businesses 21 This decision does not apply to Section 4. a. of Emergency Order 28.  exceeded the statutory authority of Wis. Stat. § 252.02, upon which Palm claims to rely. By the Court.—Palm’s Emergency Order 28 is declared unlawful, invalid, and unenforceable.

Most disappointing is that Justice Hagedorn voted in the minority with a ridiculous rationale. This comes after he went lefty on taking up the ballot issue a few months ago. Make no mistake, once Justice Kelly leaves the court, this is now a 4-3 LIBERAL Supreme Court.

Wisconsin’s Constitutional Problem

This is the heart of the problem with Governor Evers’ power grab.

“There is a constitutional problem with the Legislature giving away this much power to an unelected cabinet secretary,” Bradley said. “The people never consented to a single individual having that much power.”

Whether or not you think the order is a good idea or not, Americans have purposefully divided power in their government to prevent the concentration of power.

Think about how this power could be abused (if you don’t think it’s being abused already). Imagine that they declare smoking a health crisis and the Health Secretary orders anyone caught smoking (tobacco or Mary Jane) or vaping to be imprisoned. Or perhaps too much screen time is declared a health emergency so the government regulates your screen time from the ISP. Or having large groups of kids together spreads disease so a bureaucrat closes all public schools. I’m struggling to come up with a farcical example because I could see any of these things being done if we concentrate that much power in the hands of a few… or one.

We are a self-governing people and our Constitution was constructed precisely to prevent something like this. Separate, coequal powers; checks and balances; elected officials making laws; Rule of Law; etc… these are the roots to which we must return.

Evers Agrees To Follow Law

It’s not just on shutdown orders where the Evers Administration is breaking the law. He truly doesn’t think that the law should apply to him.

Gov. Tony Evers’ administration will hand over 10,000 pages of records to Republican Rep. John Nygren to settle an open records lawsuit he filed in November.

Under the terms of the settlement reached by the Department of Justice, the state will pay $40,000 in fees to Nygren’s private attorneys.

Nygren, R-Marinette, sued Evers in November to compel his office to turn over records related to farmer mental health programs run by the Department of Agriculture, Trade and Consumer Protection his office had denied in full. Nygren had requested the records in August. Senate Republicans ended up firing Evers’ agriculture secretary for criticizing them about the funding for those programs.

Nygren’s lawsuit was one of several instances where Evers has come under fire for his open records practices. In filing his lawsuit, Nygren — who has himself come under fire over transparency — chided the governor’s records denial as shameful.

This was a pretty routine open records request and the law is clear. Despite that, Evers concealed, fought, and eventually cost the taxpayers tens of thousand of dollars to defend Evers’ vanity.

City Reverses Mask Order After Citizenry Gets Uppity

Good. I hope that all municipal governments and police departments remember who they serve.

An Oklahoma city has reversed an emergency proclamation requiring shoppers to wear face masks due to threats of violence.

Stillwater, located about 65 miles northeast of Oklahoma City, started to reopen businesses on Friday morning as part of the state’s phased-opening program. That included salons, barber shops, restaurants, gyms, museums and movie theaters.

The city had required customers to wear masks in stores and restaurants. But the mayor quickly amended that policy on Friday afternoon after employees were “threatened with physical violence and showered with verbal abuse” in the span of three hours, Stillwater City Manager Norman McNickle said in a statement. There was one threat of violence using a firearm, he added.

And if you want to wear a mask, then by all means… wear a mask.

Supreme Court Takes Case. Will Hold Hearings on Tuesday.

Ugh.

The Wisconsin Supreme Court on Friday said it would take up a controversial case that could result in the suspension of Gov. Tony Evers’ stay-at-home order, implemented to mitigate the spread of COVID-19.

The 6-1 decision is a setback for the Evers administration, which wanted the court to throw it out. Now, attorneys for the administration and Republican Legislature, which brought the lawsuit, will present their arguments via videoconferencing on Tuesday, after which the court could rule.

It frustrates the hell out of me that the court moves so slow. For most of the court’s business, time is not of the essence. They are deciding on some legal issue about an incident that is long over and the immediate impact of that decision impacts very few. But when there is something going on RIGHT NOW that requires a decision, the people deserve for them to act faster.

In this case, we have a rogue executive branch that is seizing dictatorial powers to usurp the power of the legislature and rule by decree. The governor is violating every Wisconsinite’s civil rights and causing incredible irreparable harm to the economy and lives of millions of citizens. If there was ever a time that required swift action by the court to restore the division of powers and uphold the people’s rights, this is it.

The court showed that they can at swiftly when required. Just a few weeks ago, they acted within hours of Evers’ unconstitutional attempt to move the election. Why can’t they do that here? That’s the wrong question. They can do it here. Why are they choosing to plod along?