The Court of Appeals Speaks in the Recall Case

Today, the District IV Court of Appeals issued an opinion that reverses a ruling by the Waukesha County Circuit Court denying a motion to intervene in the case of Friends of Scott Walker v. Brennan.  The practical impact of today’s Court of Appeals decision is that the committees seeking the recall of Governor Walker and other Republican officeholders will be permitted to intervene in the case of Friends of Scott Walker v. Brennan.  As a result, all of the legal rulings made by Judge Davis subsequent to his denial of the motion to intervene must be vacated, so that these legal issues can be reargued with the participation of the recall committees.

This means that Judge Davis’ earlier ruling, interpreting the statutory procedures for recalls under Section 9.10, is now vacated.  On January 5, 2012, Judge Davis ordered the Government Accountability Board (GAB) to take affirmative steps to identify and strike any recall signatures that are fictitious, duplicative or unrecognizable.  Because of this earlier ruling, the GAB went ahead and adopted new procedures, purchased new signature recognition software, and sought additional time in which to review the recall petitions.

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Prosecutorial Discretion in the John Doe Investigation

Over at the Shark and Shepherd Blog, Rick Esenberg has put up a post questioning whether the recently filed criminal complaint in the ongoing John Doe investigation of the County Executive’s Office during Scott Walker’s tenure justifies the time and expense spent thus far on the investigation. I posted several comments in response to Rick’s post, and it seems worthwhile to repeat those same points on the Marquette Law School Faculty Blog.

First of all, it is unlikely that the John Doe investigation will remain focused solely on the existence of campaign activity during employee working hours. According to press reports, the investigation is proceeding in the direction of investigating possible destruction of evidence and obstruction of justice. As I tell the students in my Corporate Criminal Liability class, a cover up will cause a defendant more trouble than the underlying crime.

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The Roots of Progressivism Lie in . . . the Republican Party?

Tonight, when President Barack Obama delivers his third State of the Union address, he is widely expected to channel the progressive rhetoric of Theodore Roosevelt. It was Roosevelt’s “New Nationalism” speech in 1910 (quoted in my previous post here) that called for the federal government to play an active role in regulating the economy. When he speaks to the nation tonight, President Obama is likely to push back against the demand to shrink the federal government – a common refrain among the current crop of Republican presidential candidates — by pointing to Theodore Roosevelt’s call for an active federal government.

It is certainly true that, in his “New Nationalism” speech, Theodore Roosevelt developed the theme that elite special interests had come to dominate government at all levels, thereby turning government into a tool for their own narrow purposes. President Obama is hoping that a return to this theme will resonate with voters today. However, while the connection between President Obama and Theodore Roosevelt has been widely reported, few commentators have recognized that these same ideas actually can be traced back to an earlier Republican president . . . Abraham Lincoln.

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