"Not even a busted state fisc can stop Jerry Brown's train to nowhere."

"Transportation experts warn that the 500-mile bullet train from San Francisco to Los Angeles could cost more than $100 billion, though the Governor pegs the price at a mere $68 billion. The state has $12.3 billion in pocket, $9 billion from the state and $3.3 billion from the feds, but Mr. Brown hasn't a clue where he'll get the rest...."

Mr. Brown is hoping that Washington will pony up more than $50 billion, but the feds have committed only $3.3 billion so far—and Republicans intend to claw it back if they take the Senate and White House this fall. If that happens, the state won't have enough money to complete its first 130-mile segment in the lightly populated Central Valley, which in any event wouldn't be operable since the state can't afford to electrify the tracks....

What a disaster! Remember a year and a half ago, when Wisconsin elected a new governor who said he'd kill the high-speed rail deal? I was a single-issue voter for Scott Walker then, and that was my issue. Here's a newspaper article from December 2010: "High-speed rail funds scatter to other states... California gets lion's share."

Wisconsin will keep only a fraction of the $810 million it won in federal high-speed rail money.... California is the big winner, with up to $624 million....

[Exiting Democratic Governor Jim] Doyle called the loss of the high-speed rail funds a "tragic moment for the state of Wisconsin. Eight hundred and ten million dollars that would have gone to create thousands of jobs in Wisconsin will now create jobs in other states... I obviously am deeply saddened to see us take a major step backward."

Ha. It's been so not tragic.

"My congratulations to the workers in California and Florida. As a result of this decision, you will have a merry Christmas," Milwaukee Mayor Tom Barrett said at a news conference. "I'm just sad the same won't happen here in Wisconsin."

Tom Barrett is, of course, the Democratic Party candidate in the recall election against Scott Walker, but back then, he'd just lost the regular election to Walker. The recall election is in 2 weeks. I wonder if he's been asked about these old statements about the damned train and how lucky California was to get that federal cash infusion Scott Walker spurned.

We need to see the internal records of the Wisconsin Judicial Commission in the case against Justice Prosser.

Wisconsin Supreme Court Justice David Prosser — who has been charged with 3 counts of judicial misconduct in the notorious "chokehold" incident — wants the Wisconsin Judicial Commission "to release records of its deliberations in the matter to allow him and others to determine whether the commission was... politically biased against him":

"As far as I'm concerned, I don't think I have anything to hide here," Prosser said. "I don't know who made the complaints. I don't know what their (commission members') votes were. I don't know if it was a unanimous vote or not a unanimous vote."...

Prosser... charged that the Judicial Commission's makeup is inherently biased because five of the nine members are appointed by the sitting governor, who is a partisan.

In his case, at least some of those who participated in discussion about the ethics charges against Prosser, a former Republican speaker of the Assembly, were appointees of former Democratic Gov. Jim Doyle.

I want to see the internal records. Judicial ethics matter, but who's watching the ethics of the ethics watcher, the Judicial Commission? The people have a compelling interest in seeing what happened.



Why, for example, was there no charge against Justice Bradley, who, based on the police investigation, which I've read, seems to have charged across the room at Prosser and was perhaps waving fists in his face, causing him to make a reflexive, defensive move that touched her. And she seems to have accused him of putting her in a "chokehold," which none of testimony (from 6 of the 7 justices) supports.

Why take what Prosser did out of context? That alone raises an inference of bias on the Commission.

The commission's executive director, James Alexander, declined to say which members participated in the decision or decisions to seek discipline against Prosser or how they voted....

Under the law, confidentiality can only be waived in writing by the judge facing discipline. Prosser said he will confer with his attorneys, Keven Reak and Gregg Gunta of Wauwatosa, to decide whether to ask the commission to open up its records. He said he testified before seven of the nine commission members on Sept. 23 for three hours, and for another hour in front of six members on Dec. 16, but was not present for any votes.

"The truth of the matter was, they were not interested in what my defense was or any provocation for my action," Prosser said. "They were only interested in my conduct."

Prosser must waive confidentiality first. He's going public with his assertion that the Commission was biased, but he still needs to talk to lawyers about whether to waive confidentiality. If he does, I assume the Commission will have to release the records to rebut the inference of bias. If, on the other hand, after making the accusation of bias, Prosser fails to waive confidentiality, I think Prosser should resign and let Scott Walker appoint a replacement.

Also at the first link: Prosser takes the position that all of the Supreme Court Justices should recuse themselves in his case — including Patrick Crooks, the one Justice who was not a participant/eyewitness. I don't see why Crooks must recuse, though I do see that it would be odd to let one justice decide alone. I would be much more distressed about his possible bias — he votes with the liberal justices — if we did not have the security of knowing that if Prosser is driven out, a conservative governor will name the new justice.

ADDED: It occurs to me that, if "confidentiality can only be waived in writing by the judge facing discipline," a waiver might also be needed from Justice Bradley. Didn't she face discipline too? If not, why not?

It's a furlough day here at the University of Wisconsin, and I am forbidden to work.

There's a new Supreme Court case that I might like to write about — Kentucky v. King —  but I am not even allowed to read it. I'm deprived of pay today, and on top of that, the hands of the state are clasped tight over my eyes and my typing hands are bound. I cannot read or write in any subjects in the range of my professorial job.

This furlough business is a vestige of the Doyle administration. The new governor — the infamous Scott Walker — has a different approach to balancing the state budget.

IN THE COMMENTS: Ignorance is Bliss writes:

I'd ask 'Doesn't that violate your first amendment rights?', but since that is a constitutional law question, you wouldn't be able to read it, let alone write a response.

Now, normally, that's enough to make me add the "law" tag, but I must refrain, lest my enemies wreak revenge.

ADDED: A previous discussion of the furlough day, with better detail.

"Jail booking policy today calls for reporting directly to immigration authorities any inmate who can’t produce proof of being in the United States legally."

In Madison, Wisconsin!

The Dane County Immigration Task Force in May recommended an end to routine reporting to ICE at booking. Weeks later, the Madison City Council went on record in overwhelming opposition to the jail reporting policy, recommending that only inmates charged with felonies be flagged for ICE.

[Dane County Sheriff Dave] Mahoney says he won’t change his policy. “I have a moral and ethical responsibility to ensure the security of everyone in my institution,” he says....

Local professionals who work with undocumented immigrants, mostly Latinos, speak passionately of how fear of deportation because of the jail policy affects lives of immigrant families.

The fear can paralyze, says Prudencio Oyarbide, coordinator of Clinica Latina at Mental Health Center of Dane County, a nonprofit agency serving low-income people. He says that some of his clients greatly fear making a misstep that brings them to the attention of police, to jail, and then to deportation: “They have significant impairment. They can’t work, they can’t sleep, they obsess all day long about making a mistake that ends life as they know it.” He estimates that 10 percent of his caseload of 45 to 55 clients shows fear that rises to this level of disorder.

Amy Kucin oversees Mental Health Center programs for adults with drug and alcohol issues. She sees how the fear of deportation complicates the challenges of kicking a habit. “I have a client who was arrested for drinking and driving and is working on sobriety,” she says. “He has so much fear about being out in public that he has to remind himself that his problem is drinking and driving — not looking Latino in public. The anxiety around that is really a struggle. He drives to work and goes home. Other than that, he does not go out."...

Meanwhile, also in Madison, Wisconsin:

Gov. Jim Doyle denied a request Tuesday by Attorney General J.B. Van Hollen to file a friend-of-the-court brief in the U.S. Department of Justice's lawsuit against Arizona over its new immigration law.

Wisconsin Attorney General J.B. Van Hollen won't defend the domestic partnership law.

''When the people have spoken by amending our Constitution, I will abide by their command. When policy makers have ignored their words, I will not.''

The new statutory scheme is being challenged by the Wisconsin Family Council on the ground that it violates the anti-same-sex marriage amendment that was added to the state constitution in 2006. Here is an earlier blog post on the case.

Governor Doyle — who just announced that he won't run for re-election — is predictably displeased.

Is Van Hollen launching a run?

ADDED: Here's the memo written by (my UW Law School colleague) David Schwartz on the legal issue in the case: PDF. Doyle released the memo yesterday as a response to Van Hollen's decision. I have not read the memo yet.

Doyle won't run for reelection.

So who should be the next governor of Wisconsin?

"A big gay thanks but no thanks."

"[T]he domestic-partner registry, introduced by Gov. Jim Doyle in the name of what he called decency, [is nothing but a] sad compromise..."

Lawprof David Trubek tries to fathom the furlough here at The University of Wisconsin.

You may have heard of Governor Doyle's plan:

The Governor’s furlough mandate, established in response to the State’s projected budget shortfall, requires an effective cut in pay for all full-time, 12-month employees equivalent to 16 days over the two-year period July 1, 2009 through June 30, 2011. The resulting furlough time off (FTO), required by the Governor and approved by the State Legislature, is required for all State and University employees, regardless of the funding sources used for their individual salaries and benefits. The mandatory furloughs result in a 3.065% annual pay reduction.

What's been hard for us faculty members to understand is not the reduction in pay but the requirement that we refrain from working on particular days, as my colleague David M. Trubek writes here in email that he's given me permission to republish.

The Tale of Purloined Work: Humpty-Dumpty Cracks the Case

Alice laughed. "There's no use trying," she said: "one can't believe impossible things."

"I daresay you haven't had much practice," said the Queen. "When I was your age, I always did it for half-an-hour a day. Why, sometimes I've believed as many as six impossible things before breakfast." (Through the Looking Glass, Chapter 5)

Everyone at The University of Wisconsin will have their pay cut by about 3% and will be “furloughed”—told they do not have to work—for a corresponding period of time. But it turns out that we not only don’t have to work, we are being told we cannot work. The guidelines ban any kind of work during furloughs, anywhere. This means that even if you are at home you are not supposed to read professional material, get and send emails, make calls, use a smart phone, etc. Employees who violate the work ban can be disciplined.

Some people think this rule is irrational, impractical and unjust. Irrational because no one is harmed if we choose to work even if we are not paid. Impractical because of the way many of us work in many locations seamlessly combining work and leisure and using electronic media of all types. Unjust because if people place a high value on work, the policy not only takes away some of our pay; it also takes away working time we value for itself.

Because I am troubled by this policy, I set out to find out how we ended up with what seems like an absurd rule. I did some internet research and think I may have discovered the tortured path that led to the work ban. Because it felt that we, like Alice, had fallen down the rabbit hole, I also sought guidance from Lewis Carroll’s Alice in Wonderland. Here is what seems to have happened:

1) The Fair Labor Standards Act (FLSA) has two categories of employees: exempt and non-exempt. An exempt person must be paid their full salary for any week they work, however many hours they actually put in. If an exempt person is furloughed, they would still have to get full pay. Non-exempt employees, on the other hand, can have their pay reduced pro-rata with a reduction in their hours. People in “learned professions” are exempt if they earn more than $455 a week (whether paid on an hourly basis or not), have specialized education, and do work that requires advanced knowledge in a field of science and learning.

2) Needless to say, faculty and some other academic personnel are classified as exempt. If the rules governing pay for exempt employees were to apply, the UW would not be able to get salary savings from furloughs because the law requires they be paid in full no matter how many hours they work.

3) Since that would defeat the whole purpose of the plan, the only solution is to turn an exempt employee into a non-exempt employee. Since classification depends on the level of education and the type of work people do, you might think this cannot be done by the stroke of a bureaucratic pen. But, remember: we are down the rabbit hole where impossible things are done every day. So, it appears that the University is going to temporarily declare that teachers and other exempt employees are non-exempt for the time period in which the furlough falls. Then, it will specify a number of hours they should work. This will be less than the number of hours they normally would work so it will be OK to cut their pay proportionately.

4) But now we come to Catch 22 (even in Wonderland there are catches). If a non-exempt worker puts in more than the hours specified, the FLSA requires that they be paid overtime. So, if the goal is to reduce everyone's pay, these workers not only have to be told that they only have to work fewer hours: they must be kept from exceeding that number of hours lest they trigger a legal claim for overtime. And that is the source of the guideline that tells us we cannot do any kind of work as well as the requirement that people must certify that they did not work.

In Wonderland all this seems very sensible. But isn't it based on an impossible thing? The FLSA's tests for which status one falls in are objective. One is exempt if one has a certain type of training and does a certain type of work and it doesn’t matter whether the employee is paid on an hourly or salary basis. So since the nature of our education and our work hasn’t changed, and merely putting us on hourly pay for this period cannot affect our classification, how can the state reclassify us as non-exempt?

To answer that, I refer you to Humpty-Dumpty:

When I use a word," Humpty Dumpty said in rather a scornful tone, "it means just what I choose it to mean -- neither more nor less."

"The question is," said Alice, "whether you can make words mean so many different things."

"The question is," said Humpty Dumpty, "which is to be master - - that's all."
(Through the Looking Glass, Chapter 6)

But what if I don't want my car running on cheese?

From this year's State of the State Address by Wisconsin Governor Doyle:

Let me recognize another innovator who did more with what he had, who saw more than just a cheese processing plant at the crossroads of a small central Wisconsin town. This is someone who took the leftover ingredients of cheesemaking – whey permeate – and found a way to turn it into a renewable fuel. He then set up a local distribution network for his cheese-based ethanol. I am proud to introduce Joe Van Groll.

You know, in other places, they just eat cheese. But here we wear it on our heads when we watch football and now, thanks to Joe, Wisconsin is the state where we can even use it to drive our cars.

Just tell me where I have to go — how much gas I have to burn getting to a place where I can buy gasoline without the fucking ethanol that is screwing up my gas mileage? I don't want to drive with cheese! I don't want to drive on corn! Quit forcing me to put food in my car.

IN THE COMMENTS: Michael H wrote:

Using corn to manufacture ethanol has driven up the price of tortillas in many third world countries, especially Mexico.

Using whey to manufacture ethanol is driving up the price of infant formula. some of which includes whey protein as a primary ingredient.

How an earth is that a good thing?

Foolish, elitist American politicians believe that they can make the world a better place, without any understanding or concern for the consequences of their actions.

"Oppose Wisconsin Checkpoints."

The Facebook group.

"Wisconsin, I know who we are. We’re Badgers."

"We don’t shy away — we stand up. We don’t withdraw, feeling sorry for ourselves — we get up and fight. We work even harder. We don’t point fingers and fall into small minded bickering —we pull together, share the sacrifice and move forward. We don’t forget those who have been hardest hit —we look out for our brothers and sisters who need help the most. We are Badgers."

State legislator who thinks there are "too many attorneys" convinces state assembly to cut all funding to my law school!

Here's the news from Madison:

"We don't need more ambulance chasers. We don't need frivolous lawsuits. And we don't need attorneys making people's lives miserable when they go to family court for divorces," said Rep. Frank Lasee, R-Green Bay. "And I think that having too many attorneys leads to all those bad results."

Oh, yeah... people have legal problems because of the lawyers. All those divorced people? Divorce lawyers are to blame. What utter lameness! What an embarrassment to the state!

I agree that there shouldn't be frivolous lawsuits, but how do you get a court to dismiss a frivolous lawsuit? You need a lawyer. And how do you get lawyers not to file frivolous lawsuits? You train them well so they know what is frivolous and what isn't and so they have the professional ethics not to use the legal system to harass people.

Good lord, it's one thing for one legislator to think so poorly, but quite another to convince the assembly to vote along with him.
But it's not that bad:

The plan appears to have little chance at surviving negotiations between the Assembly and Democratic-controlled Senate and being included in the Legislature's final budget.

Even if it did, Gov. Jim Doyle would likely veto it. Doyle, whose late mother was a beloved administrator at the law school, said Thursday that the plan was "a really bizarre thing that came out of nowhere."

What weird emotionalism in government! The governor's dead mother will help to get to the right result? She has no more place in the story than Lasee's fervid thoughts about too many lawyers.

Analyze it rationally, and you'll see that if the funding is cut the law school won't shut down. It will only raise tuition:

[Law School Dean Ken] Davis said ... [t]he school receives only $2.5 million per year in state funding, or 10 percent of its $20 million budget. Still, it would have to increase its $12,600 annual tuition, which is the lowest in the Big 10 Conference and enables many low-income students to attend.

"That would be a very bitter pill to swallow for us," Davis said. "We have a national reputation for access to legal education."

There's an easy emotional argument within reach here: Republicans only care about the rich.

Lasee said he would welcome a significant tuition increase for prospective lawyers or a cut in the school's 810-student enrollment.

"When we have an overabundance of attorneys already, there's no point in subsidizing the education of more attorneys," Lasee said.

Yes, the profession will be improved once you've limited access to the people who have the most money to spend on education. Brilliant.

The proposal, made public the day before the vote, prompted wide speculation. Was a lawmaker angry the school rejected him? Were the cuts retaliation against professors who called a sex offender tracking law unconstitutional? Were they punishing the Innocence Project for freeing a man who later killed a 25-year-old woman?

Yes, legislators, why do you hate us? Well, everyone instinctively hates lawyers and lawsuits, and this is essentially a healthy gut reaction. But you need to think a little harder and see why we need a legal system, why we should deeply value the rule of law and the role lawyers play in preserving it, and why legal education is part of that.

Sigh.

ADDED: A post with amusing comments over at Above the Law.

MORE: My colleague Marc Galanter provides some information relevant to the question whether there are too many lawyers in Wisconsin:

Wisconsin, with about 2.% of the U.S. population, has about 1.2% of the country's lawyers.

The ratio of population to lawyers in the U.S. in 2000 was 264/1. In Wisconsin it was 401/1.

Among the 51 jurisdictions (50 states and D.C.), the Wisconsin's population to lawyer ratio was 38th in 2000.

Wisconsin's lawyer population is slightly older (median 50 vs. 47) and significantly less female (22% vs. 27%) than the nation as a whole. This suggests that it has not been growing at as high a rate as the nation as a whole.

In short, Wisconsin seems to have about one third fewer lawyers per capita than the rest of the country and it's not catching up.

Is this a lawyer deficit? Research has shown a correlation between economic growth and lawyer population. Causality may run in either or both directions. But it is clear that lawyer population does not have an inhibiting effect on economic growth.

The lawyer population also seem to be associated with such non-market goods as civil liberties and political democracy.

(Marc's comment is based on research done done by the American Bar Foundation, Frank Cross, and Charles Epp. It dates back to 2000, but Marc says "there is no reason to suspect that any of this has changed more than marginally.")