Boots & Sabers

The blogging will continue until morale improves...

Category: Law

People are policy

Here is my full column that ran earlier in the week in the Washington County Daily News.

After another election cycle where the Wisconsin Election Commission did everything they could within and without of the law to tilt the election results to the Democrats, there is talk again of restructuring or rebuilding the WEC to make it less partisan. The problem is not with the structure or mission of the WEC. The problem is with the people who run it and the refusal of lawmakers to hold them accountable.


The history of the WEC is important to remember. The WEC came into existence in 2016 as a response to the corrupt Government Accountability Board. The GAB was an allegedly bipartisan board that was responsible for the oversight of elections and ethics. Particularly after Gov. Scott Walker won in 2010 and Republicans won majorities in the Legislature, the GAB was involved in multiple scandals as they used their power over elections and ethics to advance the cause of Democrats. It was one of the many cases of Democrats weaponizing a purportedly unbiased government agency for political gain.


But the GAB was created for the same reason as the WEC. The GAB was only in existence for less than a decade. It was formed in 2008 to assume the combined responsibilities of the State Ethics Board and the State Elections Board. The GAB was created because the State Ethics Board and State Elections Board had been involved in multiple scandals where they used their authority to influence outcomes instead of acting fairly and, ironically, ethically.


Do you see the pattern? While the response of politicians to the rogue actions of one of their creations is to reshape it with the vain notion that structure can be a substitute for leadership, they ignore the root of the problem. The problem is not the structure. The problem is the people.


The structure of the WEC is designed to balance competing interests. The commission is comprised of six appointed commissioners who serve staggered five-year terms. Two of the commissioners are appointed by the governor. Two commissioners are appointed by the Senate majority and minority Leaders. Two commissioners are appointed by the Assembly speaker and Assembly minority leader. As structured, no single political party would ever have complete control of the commission, but one party could control a majority of the commissioners.


The commissioners are responsible for leading the WEC, but they hire a staff that does most of the work. The staff is also responsible for making recommendations to the commissioners on public policy matters. The WEC is not a lawmaking body. The extent of their mandate is to manage Wisconsin’s elections within the firm boundaries set forth in state statute. It is in the intentional violation of their legal boundaries where the WEC most often runs afoul of their charge.


In just the last few years, the WEC has bent or broken the law in a number of ways. They refused to purge the voter rolls in a timely fashion as directed by law. They reportedly allowed nursing home staffers to cast votes on behalf of residents in violation of the law. They allowed municipalities to use unattended ballot drop boxes, closed polling locations, prohibited special voting deputies from entering nursing homes, and repeatedly used the pandemic as an excuse to ignore state law. All of these actions made it easier to cheat and made our elections less likely to actually represent the will of the people.


Beyond the affirmative violations of the law, the WEC exploited its regulatory authority to favor Democrats. In almost every single dispute about an election process or action, the WEC ruled in favor of Democrats. It is remarkable that a purportedly nonpartisan and unbiased commission would make decisions in favor of one party so consistently.


The structure of the WEC is supposed to prevent such biased actions. The fact that the WEC is an appointed commission that is accountable to elected officials is supposed to hold them accountable to the law and mission of the commission. Here is where the actions, and inactions, of people is the root of the problem.


When the WEC was created, it was staffed almost entirely with the same Madison bureaucrats who worked in the GAB. Since the GAB was discredited and dissolved because it was corrupt, it was ludicrous to move the same staff to the new commission, but that is exactly what happened.


With the same biased and corrupt staff, the new commissioners of the WEC have the power and responsibility to act legally and fairly. Here again, the commissioners have failed in their duty to use their power to keep Wisconsin’s elections free and fair.


Even as the commissioners are failing in their duty, it is the duty and responsibility of the governor and legislative leaders to hold their appointees accountable when they violate the letter or spirit of the law. Here again, the elected leaders are failing in their duty.


The WEC has three layers of leadership and accountability, and all three layers are failing because of the weak and/or corrupt people who are in those leadership positions. There is no alternative commission structure than could instill ethics or backbone in people who do not have them already.


The problem with the WEC is not the structure. The problem with the WEC is the people responsible for running it. Until the people of Wisconsin hold elected officials accountable, the problem of corrupt and sloppy elections in Wisconsin is not going away.

Wisconsin Supreme Court Rejects Appeal About Media Access

This is the correct ruling. While aggravating, this is not something we want a court telling a Governor which reporters they should provide access to.

WASHINGTON — The Supreme Court has rejected an appeal from a conservative think tank over Gov. Tony Evers’ decision to exclude the group’s writers from press briefings.

The justices acted without comment Monday, leaving in place lower court rulings that said the decision is legal.


The John K. MacIver Institute for Public Policy filed the lawsuit in 2019 alleging that Evers, a Democrat, violated its staffers’ constitutional rights to free speech, freedom of the press and equal access.




The appeals court ruled that Evers’ media-access criteria was reasonable and he was under no obligation to grant access for every news outlet to every news conference.

MacIver had argued that Evers was excluding its staffers and violating their free speech rights because they are conservatives. Evers said they were excluded because they are not principally a news gathering operation and they are not neutral.

Abortion extremism in Madison

My column for the Washington County Daily News is online and in print. Here’s a part:

In the same week that the United States Supreme Court heard arguments about a challenge to the Mississippi ban on abortions after 15 weeks of pregnancy, Gov. Tony Evers wielded his veto pen to demonstrate just how radical abortion supporters have become. We have come a long way from the time when abortion supporters advocated that they be safe, legal, and rare.




One of the bills would have made it a crime for a doctor to withhold medical care from a baby who survived an abortion and was born alive. While very rare, it happens. It is more common than an infant dying of COVID. As I wrote above, to assign the beginning of a life at any point after conception is arbitrary, but as a society, we at least once agreed that children who were born were considered human and worthy of protection. There is no logical distinction in the rights of a baby born during a failed abortion and a baby born in other circumstances. It is a living, breathing, feeling baby. And there is no logical distinction between a doctor letting a baby die for lack of care and a parent doing the same thing. In vetoing this bill, Evers has sanctioned infanticide.


Another bill would have banned women from aborting their baby based on the baby’s sex, race, or national origin. It would have given the same protections against discrimination that our laws extend to the born. It is a logical extension of the recognition that unborn people have human rights too. In a logical extension of his unscientific opinion that unborn humans are not humans at all, Evers vetoed this bill too. In Evers’ Wisconsin, a woman may abort her child if she doesn’t want a girl or a brown son at her discretion. In-utero discrimination is the law of the land.


While I strongly advocate for the end of all abortions, at the very least, we should not be using abortion as a way to curate the population for favored races and sexes. We should also all be able to agree that once a baby is born, it deserves protection from being killed through intentional neglect. Unfortunately, there is no such agreement anymore.

Sotomayor Concerned More With Optics than Law

The entire reason that we give Supreme Court justices lifetime appointments is so that that can dispassionately rule on the law irrespective of the social or political winds. Roe is bad law and SCOTUS has a history of revisiting bad decisions and correcting them.

Justice Sonia Sotomayor questioned whether the legitimacy of the Supreme Court would endure if it overturned abortion rights during a landmark hearing on a Mississippi law restricting the procedure.


“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” Sotomayor said during oral arguments Wednesday morning. “I don’t see how it is possible.”

Wisconsin Supreme Court Takes Conservative Approach to Redistricting

Good news.

The Wisconsin Supreme Court on Tuesday sided with Republicans in a redistricting case that lays the groundwork for the state’s current political boundaries to remain largely intact for the next decade.


In a 4-3 ruling, the court’s conservative majority said it would take a “least changes” approach to Wisconsin’s current legislative and congressional maps, effectively limiting any changes in political boundaries to population changes.


The ruling means that the court will make as few changes as possible to political maps drawn and adopted in 2011.




In their ruling on Tuesday, however, the Wisconsin Supreme Court’s conservative majority argued that the state’s existing congressional maps had already passed muster, leaving no reason for the court to take more drastic action.


“The existing maps were adopted by the legislature, signed by the governor, and survived judicial review by the federal courts,” the ruling reads. “Treading further than necessary to remedy their current legal deficiencies…would intrude upon the constitutional prerogatives of the political branches and unsettle the constitutional allocation of power.”

It’s hard to argue with that logic.

FBI Unleashed on Parents for Petitioning Government

The Left really has weaponized every federal agency against their political opponents. This is a travesty. The liberty to petition your government with your grievances is a fundamental component of a self-governing society. Sometimes those petitions are passionate, rude, or even belligerent. That’s always been part of a free society. Specific threats against public officials have always been punished just like threats against anyone else. What the FBI has been doing here is trying to intimidate and criminalize a speech based on its content – based on the fact that is goes against a particular political ideology. This is totalitarian stuff.

The Federal Bureau of Investigation (FBI) has created a tag for threats against teachers and school administrators and is tracking such investigations on a national level.


An FBI whistleblower provided an email dated Oct. 20 to House Republicans sent on behalf of the counter-terrorism division and the criminal division. The email referenced Attorney General Merrick Garland’s Oct. 4 directive to the FBI to ramp up its involvement in school board threats, and notified agents of a new tag, ‘EDUOFFICIALS,’ to assign to any threats against school administrators, board members, staff or teachers to determine the scope of the problem on a national level and to provide a ‘comprehensive analysis of the threat picture.’


‘This disclosure provides specific evidence that federal law enforcement operationalized counterterrorism tools at the behest of a left-wing special interest group against concerned parents,’ House Republicans claimed in a letter to Garland.

5th Circuit Slams Vaccine Mandate

It’s not freedom if you’re only allowed to do what the government tells you to do.

‘The mandate is staggeringly overbroad,’ the opinion said. ‘The mandate is a one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers).’

‘The public interest is also served by maintaining our constitutional structure and maintaining the liberty of individuals to make intensely personal decisions according to their own convictions – even, or perhaps particularly, when those decisions frustrate government officials,’ Engelhardt wrote.

SCOTUS Liberals Threaten Full-Scale Legal Assault on Rights if Conservative Justices Don’t Strike Down Texas Abortion Law

I don't recall ever seeing anything like this. The Liberal wing of the court is essentially threatening the other wing by green-lighting a lefty legal assault if they don't get their way.

Justice Elena Kagan said a ruling in Texas' favor "would be inviting states -- all 50 of them -- with respect to their unpreferred constitutional rights, to try to nullify the law that this court has laid down as to the content of those rights."
"There's a there's nothing the Supreme Court can do about it. Guns, sex, marriage, religious rights, whatever you don't like. Go ahead," Kagan said.

Karens Sue Schools Because Their Kids Got Sick

Unless these parents are also forcing masking, distancing, etc. on their kids in every other aspect of life, I don't see how they can even prove that their kid got COVID at school. But imagine what kind of hell schools will be if they become liable for every kid who catches any kind of illness in their walls.

The parents in Waukesha and Fall Creek each filed federal lawsuits against their respective school boards after their children tested positive for COVID-19. The lawsuits claim the children got sick after they were exposed to another sick child while in school, and blame their children's' illness on the districts’ lack of mitigation strategies.


Both cases are seeking an order to force the districts to comply with COVID-19 guidance from the CDC.


The lawsuits are being funded by the Minocqua Brewing Company Super PAC. The Super PAC and the brewery, which has politically branded beers, are owned by Kirk Bangstad, who ran unsuccessfully last November for the Assembly District 34 seat against incumbent Republican Rob Swearingen. He started a Super PAC in January targeting Republican federal and state officials.

Court Rules in Favor of 1st Amendment Despite Pandemic

From Wisconsin Spotlight. It is rather unsettling that a decision like this would ever be in doubt.

MADISON — The First Amendment cannot be constrained in the name of a pandemic.


That’s the ruling of a federal judge who finds Marquette County law enforcement officials violated the speech rights of a teen when they threatened to arrest her after she posted on Instagram that she had COVID-19 in the opening months of the pandemic.


“The First Amendment is not a game setting for the government to toggle off and on. It applies in times of tranquility and times of strife,” wrote U.S. District Court Judge Brett Ludwig in his decision, “While Defendants in this case may have believed their actions served the greater good, that belief cannot insulate them. Demanding a 16-year-old remove protected speech from her Instagram account is a First Amendment violation.”


Ludwig granted Amyiah Cohoon, at the time a sophomore from Oxford, and her parents summary judgment. And the defendants, Sheriff Joseph Konrath and Sergeant Cameron Klump, cannot escape liability by invoking probable cause or qualified immunity, the judge wrote.


As Empower Wisconsin reported, on March 27, 2020, Klump threatened to cite or jail Amyiah or her parents if she did not remove the social network post indicating she was recovering from COVID-19, according to the lawsuit.

Wisconsin Backs Down On Onerous Regulations for Swimply

Good. Government should get out of the way of innovation.

MADISON, Wis. (AP) — Wisconsin regulators have backed down on demands that operators of a startup that allows private homeowners to rent their swimming pools by the hour said would kill their business.


Wisconsin regulators told Swimply in April that pools offered for rent would have to be treated the same as large, public swimming pools. That meant a pool's owner would have to obtain a license and meet tougher construction requirements.

But on Friday, the Wisconsin Department of Agriculture, Trade and Consumer Protection notified attorneys for Swimply that most pools offered for rent would not have to meet those higher standards.


Wisconsin was the first state to push back against Swimply, which started in 2018 with four pools in New Jersey but has taken off during the pandemic.

Nirvana Baby Sues Alleging Child Pornography

Someone wants a pay day. The age of great album covers has been over since the advent of online media, but this was one of the most iconic (although, the music was terrible).

Spencer Elden, the man who was photographed as a baby on the album cover for Nirvana's Nevermind, is suing the band alleging sexual exploitation.

The cover depicts Elden as a four-month-old in a swimming pool, grasping for a dollar bill that's being dangled in front of him on a fishing line.


Now 30, Elden says his parents never signed a release authorising the use of his image on the album.


He also alleges the nude image constitutes child pornography.


"The images exposed Spencer's intimate body part and lasciviously displayed Spencer's genitals from the time he was an infant to the present day," legal papers filed in California claim.

Non-sexualised photos of infants are generally not considered child pornography under US law.

Beware of governments that keep lists

Here is my full column that ran in the Washington County Daily News earlier this week.

Last year, Wisconsin Manufacturers & Commerce sued Governor Tony Evers to stop the wholesale release of the names of businesses where employees had COVID-19 or been exposed to someone who did. Last week, the Wisconsin Supreme Court agreed to take up the case.


At issue is the public disclosure of private information that the government has been collecting during the pandemic. In this case, the state government, through medical disclosures and contract tracing efforts, has kept a list of the businesses whose employees contracted COVID-19 or came into contact with someone who did.


After first saying that such information should not be made public, Governor Evers reversed himself and agreed to release the information to news outlets. WMC sued to stop the release, obtained an injunction to that effect, and now the case is headed to the state Supreme Court.


Wisconsin’s Open Records Laws are generally very strong and favor the release of all information held by government unless there is a compelling reason to not do so. In this case, there are several reasons to deny public release. The release of the information would unfairly damage Wisconsin’s small businesses and potentially damage the effort to combat this and future pandemics.


The public disclosure of businesses where employees have had COVID-19 or have been exposed to someone who did would cause undue harm to those businesses. The mere disclosure of the information gives the false impression that somehow the businesses were at fault, or at least complicit, for the spread of COVID-19, but no such connection can rationally be made. The employees might have contracted COVID-19 anywhere, but only their employers would be listed.


While not a fair conclusion, Wisconsin’s small businesses that show up on that list might lose potential patrons who think that the businesses are unclean, infection-spreading, hot spots. This lumps in businesses who followed every rule or advice issued from health agencies (however wrong they were) with those businesses that took little or no precautions. The fact that one employee contracted COVID-19 or encountered someone who did puts all of those businesses on the same unfair list.


Furthermore, employment is fluid. There is no guarantee that an employee with COVID-19 last May still works at the same employer. All the list would show is that an employee had COVID-19 sometime in the past. It is not current or actionable data. Wisconsin’s small businesses have suffered enough and do not deserve one more hit from Governor Evers by having their names thrown into the public space.


There is also the potential that the public disclosure of the list of businesses will impede future pandemic mitigation efforts. The collection of the data, at least in the early days of the pandemic before it became widespread, was a useful tool to identify hot spots and focus our efforts. If business owners or employees are fearful that sharing information with public health officials may one day be released to the public, they will be less likely to do so in the future. It is always good advice to tell your government as little about yourself as possible and the threat of public shaming only supports aggressive privacy.


Against these serious negative consequences from a public disclosure, Evers must balance any positive reasons to release the information. Evers has a strong history of only releasing public information when absolutely necessary or when it might damage a political opponent, so why is he so adamant to release this information? What compelling public interest does it serve that would outweigh the damage done to Wisconsin’s businesses and efforts to fight future pandemics? Why is Evers so intent on releasing the information despite his earlier attestations that the information should not be made public? What changed? Other than a deliberate attack on Wisconsin’s businesses to appease Evers’ radical supporters, there does not seem to be any rational reason.


Governor Evers should have the common sense to keep this information out of the public space, but since he does not, hopefully Wisconsin’s Supreme Court will right this attempted wrong.

Madison to be Sued Over Racial Quotas

By definition, this is racist.

A conservative law firm plans to file a lawsuit against the city in federal court Wednesday over Madison’s new police civilian oversight board.

The Wisconsin Institute for Law and Liberty argues that Madison’s decision to reserve seats on the board for Black, Asian, Latinx and Native American people constitutes a racial quota and is unconstitutional.

“Racial quotas and classifications — enshrined in this city law and the official policy of the city — are unconstitutional, offensive, and repugnant to basic American values,” the law firm said in a statement. “The city of Madison has not identified a compelling government interest that would justify racial quotas."

The 13-member civilian oversight board was created last year in a years-in-the-making decision meant to bring more accountability to the Madison Police Department. In addition to hiring an independent police monitor, the board will conduct an annual review of the police chief and make policy recommendations to police, among other responsibilities. Most recently, the oversight board finalized the job description for the police monitor position.

Wisconsin Supreme Court Punts on Another Important Ruling

Hagedorn is the Souter of the Wisconsin Supreme Court.

The Wisconsin Supreme Court on Friday tossed out an election lawsuit brought by a conservative businessman in an effort to halt the use of absentee ballot boxes in future elections.

The 4-3 decision is another decided by conservative Justice Brian Hagedorn’s swing vote. Hagedorn joined liberal justices in declining to hear the lawsuit filed in March against the Wisconsin Elections Commission, Madison, Milwaukee and others by Jere Fabick, a prominent Republican donor and president of Fabick Cat, the Caterpillar equipment and engine dealer.

Justices in the majority relied upon procedural reasons not to hear the case over concerns from a minority of conservative justices that the state’s highest court is avoiding taking on important cases.

SCOTUS Signals Intent to Weigh in on Race Considerations in Higher Education

Racism, even if well intentioned, is still racism.

The Supreme Court on Monday called for President Joe Biden’s Department of Justice to weigh in on a pending case over affirmative action at Harvard University, signaling the court’s interest in a dispute that could scale back the widespread use of race in higher education admissions.


In an unsigned order, the justices requested a brief from acting Solicitor General Elizabeth Prelogar expressing “the views of the United States.” Such a move is often a prelude to the court ultimately deciding to hear a case, though not always.

Monday’s move also has the potential to delay the litigation, even if the court eventually votes to consider the case. If the court agrees to hear it in its term beginning in October, a decision would be likely by June 2022. If the court doesn’t hear the case until the term after that, the decision may not appear until the summer of 2023. It requires the votes of four justices to take up a case.


The dispute, known as Students for Fair Admissions v. President and Fellows of Harvard, No. 20-1199, was brought by a group led by the anti-affirmative action activist Edward Blum. Students for Fair Admissions said that Harvard’s limited consideration of the race of its applicants discriminates against Asian applicants in favor of white applicants. That runs afoul of Title VI of the Civil Rights Act of 1964, they argue.


A federal appeals court rejected the group’s arguments in November, finding that its “limited use of race in its admissions process in order to achieve diversity” was consistent with Supreme Court precedents. In February, Students for Fair Admissions filed a petition with the Supreme Court asking the justices to hear its appeal of that decision.

Racism, even if well-intentioned, is still racism

Good. Let's hope this racist policy dies for good.

A federal judge has halted Joe Biden's 'unconstitutional' $4 billion program to pay up to 120 percent of black, Hispanic, Asian or Native American farmers' debt, after 12 white farmers sued claiming it discriminated against them.


Wisconsin Judge William Griesbach issued a temporary restraining order Thursday blocking the loan forgiveness program Biden put in place after saying he wanted to tackle longstanding inequalities for farmers of color.


Judge Griesbach said the plan failed to provide adequate examples of recent hardships imposed on farmers from minority backgrounds. He also claimed that in trying to end one type of discrimination, the program ended up creating another.

Biden's $1.9 trillion American Rescue Plan set aside $4 billion to the US Department of Agriculture (USDA) for loan forgiveness for socially disadvantaged farmers and ranchers.


The money would be used to pay up to 120 percent of direct or guaranteed farm loan balances for black, American Indian, Hispanic, Asian American or Pacific Islander farmers.

Wisconsin Supreme Court Strikes Down Dane County School Closings

Huzzah, huzzah. Hopefully the overreaches of government during the pandemic will be pushed back by the courts and at the ballot box.

The Wisconsin Supreme Court on Friday sided with private school parents and students in striking down a Dane County order from last August that sought to close all schools to most students to limit the spread of COVID-19.

The 4-3 decision — with all four of the court's conservatives in the majority — comes with the school year essentially over and as rising vaccination rates appear to have virus in abeyance. The court in September had also placed a temporary hold on the order, meaning religious schools were free to conduct in-person classes for almost the entire 2020-21 school year, as many did.

But the court's decision could resonate if there's a resurgence of a virus variant or a completely new pandemic in the future.

The order by Public Health Madison and Dane County barred schools from offering in-person instruction for grades 3 through 12 until the county met certain benchmarks showing the coronavirus is better contained. In effect, it would have applied almost exclusively to private schools because public schools in Dane County had already decided to start the year online for almost all students in almost every grade.

Judge Strikes Down California’s Ban on Scary Black Guns

It only took 30 years for the gears of justice to turn.

A federal judge has overturned California´s three-decade-old ban on assault weapons, ruling that it violates the constitutional right to bear arms.


U.S. District Judge Roger Benitez of San Diego ruled Friday that the state´s definition of illegal military-style rifles unlawfully deprives law-abiding Californians of weapons commonly allowed in most other states.


He handed down the two page ruling in response to a lawsuit filed against the State of California by James Miller, Patrick Russ, Ryan Peterson and the the San Diego County Gun Owners Political Action Committee.


The plaintiffs successfully argued that California's use of the term 'assault weapons' was 'a politically-concocted pejorative term designed to suggest that there is an inherently unlawful or illegitimate basis for owning otherwise common firearms protected by the Second Amendment.'


They added that California banned guns which should have been lawful to own by designating them assault weapons using faulty rationales, such as a rifle's ammunition capacity.



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