Author: Hamilton

Justice Gableman Will Not Seek Reelection

Posted on by Hamilton

Wisconsin Supreme Court Justice Michael Gableman announced last week that he will not seek reelection to the state’s highest court. His seat is up in April 2018.

Former Michael Best attorney Michael Screnock, now a sitting Sauk County Circuit Court judge, announced that he will run for the Gableman spot. Gov. Scott Walker appointed Screnock to the Sauk County bench in 2015. If he prevails, the conservatives will maintain a 5-2 majority.

It is not yet clear whether Justice Gableman will stay on for the rest of his term or resign early to allow Walker an opportunity to appoint his third justice on the court. Any appointee by Walker would have to run in the first open election, which would be April 2018 for the open Gableman seat.

Also running are Madison attorney Tim Burns and Milwaukee Circuit Court Judge Rebecca Dallet, with Burns running as an unabashed progressive.

JFC Meets May 31, Postpones This Week’s Meetings

Posted on by Hamilton

This week, the budget process came to halt, as the Joint Finance Committee (JFC) remains at an impasse on education, transportation and property taxes.  After the long Memorial Day weekend, JFC met only once last week on Wednesday, May 31. As the Assembly and Senate tried to smooth over their differences on the remaining items, JFC cancelled this week’s Tuesday and Thursday meetings.

Assembly Republicans released an education plan on Tuesday that cuts property taxes, but not as much as Gov. Scott Walker’s budget recommended. Walker has threatened to veto a budget that does not cut property taxes below the 2014 level, and Sen. Majority Leader Scott Fitzgerald (R-Juneau) said the Senate would stick to Walker’s plan. The Assembly’s transportation plan has also yet to gain traction in the Senate. Fitzgerald hinted recently that the Senate could take up their own budget, an unprecedented move in the history of the Joint Finance Committee. Lawmakers have just three weeks left to approve a budget before the June 30 deadline.

At the time of this writing, the next JFC meeting to take up the budget has not been scheduled. However, JFC will be in next Thursday June 15, to act on the state’s pending contracts to self-insure state employees.

With no JFC action to report on from this week, below are highlights from JFC’s May 31 executive session:

Department of Corrections (DOC)– Parole Commission: Gov. Walker recommended eliminating the parole commission and moving its functions to one Director of Parole position within DOC. Instead, Republicans passed a motion 12-4 that would not eliminate the commission, as Gov. Walker suggested, but would eliminate three positions on the commission that have been vacant all year, and retain a total of four members and two staff on the commission. Democrats on the committee fought to keep the eight-member commission as is, but their motion was rejected 12-4.

Supreme Court: Gov. Walker proposed creating a new process to determine judicial compensation. Under Walker’s proposed process, the Director of State Courts would submit salary recommendations to the Joint Committee on Employment Relations (JCOER) for approval. JFC did not accept the governor’s recommendation to create a new process, but approved a motion to maintain current law that judicial compensation be determined under the state employee compensation plan. Under the approved motion, judges and justices would also get a two percent raise in each year of the biennium. The motion also gives the administrator of the Division of Personnel Management the authority to establish even higher raises after consulting with the Chief Justice and obtaining the approval of JCOER.

Also under the Supreme Court, Democrats pushed to incorporate a former petition and current bill that would require justices and judges to recuse themselves in cases where the litigants have donated significant campaign contributions. However, the motion failed 12-4.

District Attorneys: JFC also approved a pay raise for district attorneys and public defenders at an increased rate from Walker’s plan. The committee unanimously voted to establish a state prosecutor board and statutory state prosecutor’s office. The motion’s authors say the board will give district attorneys representation in the capitol. The board would be made up of district attorneys, prosecutors and the attorney general. Its duties would include providing best practices for prosecuting cases, continuing education opportunities, submitting budget requests and providing recommendations on bills and administrative rules.

Tourism: JFC approved Gov. Walker’s standard budget adjustments for the Department of Tourism. Additionally, JFC approved Walker’s recommendation to transfer the Department of Tourism’s financial manager to the Department of Administration, moving $50,000 annually from salary and benefits to supplies and services for the department.

JFC also passed three other motions in Tourism. The first motion provided the department additional onetime funding of $7,500 for geographical signing in Pittsville. The second motion provided the department, on a one-time basis, $75,000 to improve structures and property in Vernon County that are used to facilitate a national or international ski jumping competition. The last motion provided the Wisconsin Arts Board with a one-time $59,500 to match federal grants received from the National Endowment for the Arts.

Department of Natural Resources: JFC addressed several of Gov. Walker’s divisive proposals under the Department of Natural Resources (DNR) at the May 31 meeting. Walker had proposed eliminating DNR’s Wisconsin Natural Resources magazine and move its content online. Democrats pushed to leave the magazine as is, but the committee ultimately voted to keep the magazine, but reduce its publication from six to four times per year and require more online content. Second to education funding, the elimination of the DNR magazine was one of the top items, Wisconsin residents testified against in the public hearings in March.

JFC also adopted Gov. Walker’s proposal to increase daily park fees by up to $5, but kept annual admission fee rates intact.

Gov. Walker had also proposed sunsetting the state forestry mill property tax as part of his promise to eliminate the state property tax altogether. JFC held over voting on this provision and instead will take it up later under property taxes. However, JFC co-chair Sen. Alberta Darling (R-River Hills) indicated that the GOP majority would approve it.

Bills of Note: Constitutional Convention

Posted on by Hamilton

The Assembly is set to vote next week on a resolution that calls for a constitutional convention. SJR 18/AJR 21, authored by Sen. Chris Kapenga (R-Delafield) and Rep. Dan Knodl (R-Germantown), proposes that Wisconsin apply to Congress for the calling of a constitutional convention to create an amendment requiring the federal government to operate under a balanced budget. Under the amended version of the bill, the state Senate Chief Clerk and Assembly Chief Clerk would forward the resolution to the U.S. Senate President and the House Speaker. The resolution would be valid until a convention convenes or the Wisconsin legislature rescinds the resolution.

The Senate Committee on Financial Services, Constitution and Federalism and the Assembly Committee on Federalism and Interstate Relations held a joint public hearing on the resolution on March 28. The committees also heard testimony on a set of related bills that would codify the process of choosing delegates and place controls on their actions while serving, specifically limiting them to the single purpose of the balanced budget amendment.

Those testifying in favor of the bill, including the National Federation of Independent Business, the Heartland Institute, and Wisconsin Grandsons of Liberty, highlighted the existing $20 trillion in federal debt. They argued that the United States needs a balanced budget to provide confidence and certainty for business, the economy and the long-term viability of government programs. Wisconsin Manufacturers and Commerce also registered in favor of the legislation.

Those speaking against the bill, including the John Birch Society, the League of Women Voters, ACLU, and the Wisconsin Democracy Campaign, testified that passing this bill would lead to a runaway convention in which states could change and rewrite any part of the Constitution. The uncertainty of convention rules could jeopardize citizens’ rights, according to the bill’s critics. Opponents of the bills also argued that a balanced budget amendment would prevent the government from offering aid in times of economic downturn or other national emergencies. A mandated balanced federal budget could force cuts to social programs like transportation, schools and healthcare, they said.

After the hearing, the Senate committee in executive session on April 30 passed SJR 18, 3-2. The Assembly committee passed AJR 21 on May 31, 5-2. The full Assembly will vote on the bill in its June 14 floor session.

Article V of the Constitution says that a convention of states to amend the constitution may be called by a two-thirds majority, or 34 states. WI would be the 30th of 34 states needed for a convention if the resolution passes both the Assembly and Senate. An amendment to the constitution would have to be ratified by 38 states.

Wisconsin Supreme Court Rejects Recusal Petition

Posted on by Hamilton

Last week, the Wisconsin Supreme Court rejected a petition to change its recusal rules. The proposal, submitted in January by 54 retired judges and justices, would have required judges and justices to recuse themselves if they received donations past a certain contribution threshold from litigants or attorneys in a case. Under the petition, the threshold would be $1,000 or more donated to circuit court judges, $2,500 to appeals judges and $10,000 to Supreme Court judges.

The Court rejected the petition 5-2, with only justices Ann Walsh Bradley and Shirley Abrahamson voting for the restrictions. Bradley and Abrahamson argued that recusal rules are necessary to ensure that judges act impartially.

Justices Bradley and Abrahamson had also submitted motions to hold a public hearing on the petition, but conservatives on the Court voted down the motion. More than 75 people and groups across Wisconsin submitted comments both in favor of and against the petition.

The justices who rejected the petition said that judges should be able to decide for themselves whether they should step off a case. A letter from 11 retired judges also affirmed that judicial campaign contributions are an exercise of free speech rights, and recusal rules would lead to gamesmanship and deter voters from participating in future elections.

The Court voted on current rules regarding campaign contributions in 2010, establishing in a 4-3 vote that election spending cannot force a judge off a case.

Josh Kaul to Challenge AG Brad Schimel in November 2018

Posted on by Hamilton

Josh Kaul, attorney in Madison and son of former state Attorney General Peg Lautenschlager, announced on Monday, April 10 that he will challenge Brad Schimel for his position as Wisconsin Attorney General. The election will be held on November 6, 2018. Lautenschlager resigned from her position with the Wisconsin Ethics Commission on Friday, April 7 before Kaul’s campaign announcement. Kaul is the first Democrat to announce plans to run against current Republican incumbent Schimel.

Josh Kaul grew up in Oshkosh and Fond du Lac, WI, going on to attend Stanford Law School. Kaul worked as a law clerk at the U.S. Court of Appeals for the First Circuit in Boston, MA before becoming an associate in Washington, D.C. He later became a federal prosecutor in Baltimore, MA before joining Perkins Coie LLP in Madison, WI. His practice at Perkins Coie included representing former Secretary of State Hillary Clinton during her 2016 presidential campaign.

Current Wisconsin Attorney General Brad Schimel announced his plans to seek re-election for another four-year term in December 2017. A former Waukesha County district attorney, Schimel is serving in his first term as state Attorney General after defeating Democrat Susan Happ in 2014. Schimel has been very active in his first two plus years, frequently defending legislation passed by the GOP legislative majority.

In his statement announcing his campaign, Kaul stated, “We deserve an attorney general who is focused on protecting Wisconsin families, not on partisan politics.” The Republican Party of Wisconsin defended Schimel, releasing a statement that said, “Attorney General Brad Schimel has fought for Wisconsin families by improving public safety, upholding the rule of law, and stopping federal overreach from Washington.”

 

JFC Holds Agency Briefings

Posted on by Hamilton

The Joint Finance Committee (JFC) met for three days this week to hear testimony from state agencies on the governor’s proposed budget. Legislators posed questions to the department secretaries on the implementation of budget proposals and asked other questions pertaining to agency services. Both Republicans and Democrats on JFC posed tough questions to agency heads on the budget’s biggest proposals, including self-insurance, the opioid epidemic and transportation funding. Republicans re-ignited their contentious debate with Gov. Scott Walker about how to address the transportation shortfall. Democrats asked pointed questions about DOJ’s testing of sexual assault kits, DNR’s regulation for polluters, DHS’s Medicaid funding and more. See below for coverage on each day’s JFC briefings.

Day 1: DOA, ETF, Elections Commission, Supreme Court, DOC, DSPS

Day 2: DOJ, DVA, DHS, DCF, DOR, WEDC, DOT

Day 3: PSC, DNR, WI Tech College Systems, UW-System, DPI, Historical Society, DWD, LIRC

Republicans to Hire Outside Counsel to Defend Redistricting Map

Posted on by Hamilton

On Feb. 2, the leadership committees in both the Wisconsin Senate and Assembly approved the hiring of an outside law firm to file a friend-of-the-court brief in defense of their redistricting map.

The redistricting plan, enacted as 2011 Wis. Act 43, was struck down by the U.S. District Court for the Western District of Wisconsin. In their 159-page opinion, the court found that:

Act 43 was intended to burden the representational rights of Democratic voters throughout the decennial period by impeding their ability to translate their votes into legislative seats. Moreover, as demonstrated by the results of the 2012 and 2014 elections, among other evidence, we conclude that Act 43 has had its intended effect. Finally, we find that the discriminatory effect is not explained by the political geography of Wisconsin nor is it justified by a legitimate state interest. Consequently, Act 43 constitutes an unconstitutional political gerrymander.

Attorney General Brad Schimel will represent the state Election Commission in defense of the redistricting map. “In his news release after the court decision, Schimel noted that the “2-1 decision does not affect the results of [the November 2016] election or any prior election and legislative district boundaries remain unchanged until the court rules on any remedy.”

President Trump Nominates Judge Neil Gorsuch to Supreme Court

Posted on by Hamilton

Neil Gorsuch, a 49-year-old appellate judge in Colorado, was appointed to the Supreme Court by President Trump on Tuesday. Born in Denver, Colorado, Judge Gorsuch attended Georgetown Preparatory School in Washington, D.C. while his mother led the Environmental Protection Agency under President Reagan. He completed his undergraduate degree at Columbia University and went on to graduate in the same class as President Obama at Harvard Law School in 1991. He additionally received his doctorate at Oxford University, where he was a Marshall Scholar.

In the legal realm, Judge Gorsuch has clerked for Judge David B. Sentelle of the D.C. Circuit Court of Appeals, Supreme Court Justice Byron White, and current Supreme Court Justice Anthony Kennedy.  He practiced law in Washington, D.C. at a large firm for 10 years and additionally served as principal assistant to the deputy attorney general in the Department of Justice before being appointed to the 10th Circuit Court of Appeals in Colorado by President George W. Bush in 2006. In announcing Judge Gorsuch as his Supreme Court nominee on Tuesday, President Trump sought to appoint a legal conservative to fill the late Justice Antonin Scalia’s seat. If appointed, Judge Gorsuch will serve as the 113th justice of the Supreme Court of the United States.

Leak of John Doe Documents Being Looked at by AG

Posted on by Hamilton

In what appears to be a targeted leak aimed at Gov. Walker, the Guardian US published sealed Wisconsin court documents from the controversial John Doe investigation. It has been reported that over six million records were seized in the politically driven investigation. The leak involved 1,350 records.

Assembly Speaker Robin Vos and other GOP leaders requested Attorney General Brad Schimel appoint a special prosecutor to “investigate this apparent violation of Supreme Court order and state law.” TheSeptember 15 letter notes that “should this potential crime go unprosecuted it runs the risk of undermining the integrity of our courts and judicial system.”

In an interview posted on September 23, Schimel noted that DOJ does not have the power to appoint a special prosecutor on its own. That authority resides in the courts, particularly the judge overseeing the John Doe.

In a related development, the Wisconsin Democracy Campaign filed a formal complaint with the IRSalleging that Wisconsin Club for Growth violated IRS regulations. The complaint alleges that the group engaged in deceptive and improper fundraising practices and that engaging in political campaigns was its “primary activity” that contravened the group’s tax-exempt status.

AG Schimel Files Complaint Against New DOL Overtime Rule

Posted on by Hamilton

On Sept. 20, Wisconsin Attorney General Brad Schimel joined a bipartisan coalition of states in filing a federal complaint against the U.S. Department of Labor’s new overtime rule. The complaint cites federal overreach by DOL and asks the court to prevent implementation of the rule before it is scheduled to take effect on Dec. 1.

The rule, released in late May, would double the salary threshold for “white collar” workers who are exempt from overtime pay from $23,660 to $47,476. According to the rule, the new threshold will automatically increase every three years. DOL estimates the threshold will be $51,168 in 2020. Once implemented, the changes would impact 4.2 million salaried workers.

Business groups say the new rule will force millions of salaried professionals to be reclassified as hourly wage workers. They argue that small businesses, nonprofits, and public sector employers will be especially hurt. The U.S Department of Labor estimates businesses will end up paying workers an additional $1.3 billion a year.

In its fact sheet explaining the rule, DOL provides businesses a “choice” under the new rule:

  1. Increase their employees’ salaries to the $47,476 threshold.
  2. Pay workers the time-and-a-half overtime premium for every hour beyond 40 per week.
  3. Limit workers to a 40-hour work week.

Some groups assert that market considerations over time will prove the paycheck benefits an illusion. To curb costs, some businesses will simply forbid employees from working over 40 hours. They may also have to cut back other expenses such as non-cash benefits or suppress the base pay itself.

Wisconsin joins 20 other states in this complaint, which was filed in Texas on Tuesday, including Alabama, Arizona, Arkansas, Georgia, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Michigan, Mississippi, Nebraska, Nevada, New Mexico, Ohio, Oklahoma, South Carolina, Texas and Utah.