Of Beanbags, Unnatural Acts with Sheep, and a Judicial Pardon for a Governor

Section 26. Field Test #3. Anatomy of a Judicial Murder: Of Beanbags, Unnatural Acts With Sheep, and a Judicial Pardon for a Governor

Précis: Field Test № 3: Anatomy of A Judicial Murder―Of Beanbags, Unnatural Acts with Sheep, and a Judicial Pardon for a Governor ● Recounts a third case in which the rule of law took another brutal beating―a case the author brought after he was fired from his post on Wisconsin’s tax court by Wisconsin’s then-governor, Tommy G. Thompson, later operating as President Bush’s Secretary of Health and Human Services, then presidential candidate, and for now at least, a wannabee U.S. Senator. The author’s “indiscretion” was to disregard the governor’s threats to remove him from office should he rule against the state in a $150 million tax refund case then pending. He did. And sure enough, he was fired.

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“The job is yours as long as you don’t do anything unnatural with sheep.”—Edward Marion, Chief of Staff to Gov. Tommy G. Thompson, promising a tax judge a six-year contract.

“In a contested case, no ex parte communication . . . or threat or offer of reward shall be made, before a decision is rendered, to the hearing examiner or any other official or employee of the agency who is involved in the decision-making process, by: 1. An official of the agency . . .; or 2. A party to the proceeding . . . .”—Wisconsin Statutes §227.50

“How can you do this when your reappointment is up?”— Wisconsin Tax Appeals Commission chairman, Mark Musolf, to the tax judge, who had made a preliminary ruling against the governor in a $150 million tax refund case.

“I wanted to let him know which way the wind was blowing on his rulings.”—Marion, to convey to the tax judge the governor’s dismay over the preliminary rulings.

“He’s a dead man!”—Gov. Thompson on the life expectancy of the tax judge.

“Politics ain’t beanbag.”—the Wisconsin Court of Appeals, upholding the judge’s dismissal.

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In December 1991, Governor Tommy Thompson asked me to accept a full-time position on the Wisconsin Tax Appeals Commission, the state’s tax court. At the time I was a part-time judge on the commission, having been first appointed by Thompson in 1987, with encouragement from George Watts, the hero of this book. My part-time status had allowed me to carry on a private law practice; however, going on full-time would mean giving up that practice, among other things, because state statutes prohibited full-timers from engaging in outside work.

The vacancy was created by the departure of one of the full-time judges. Tax appeals judges are appointed for six-year terms, but the vacancy I would fill had a little over one year left on the term. That concerned me, because I didn’t want to give up my law practice to take a job that would expire just a year later. Law practices and clients don’t bear up well and regenerate when the lawyer disappears for a year. Consequently, I made it a condition of my acceptance of the one-year term that I would be reappointed a year later to a full six-year stint.

That was agreeable to Thompson. The governor, working through his chief-of-staff, lawyer, and former judge Edward Marion, agreed that if I would give up my law practice, take the position, and refrain from doing “anything unnatural with sheep”, as Marion put it, Thompson would re-nominate me for a six-year term beginning March 1, 1993. I accepted, gave up my law practice, assured Marion I had only natural interests in sheep, and began the work January 1, 1992, very pleased that I would be doing work I loved almost until the turn of the century.

One of the cases soon assigned to me was Hogan v. Wisconsin Department of Revenue,[1] a case involving some $150 million of tax refund claims by 25,000 former federal employees, now federal pensioners, claiming discrimination in the taxation of their pensions. Their pensions were statutorily taxable, but those of certain state and local government employees were exempt. The Wisconsin Department of Revenue had asked the commission to dismiss the case on the grounds that the state was not liable to pay retroactive refunds, although the department gave no reasoning to support that conclusion beyond saying that the taxes had been collected in good faith, and the state ought not to have to return the money.

The issue was not close. Just as every valid department tax assessment is always retroactive in the sense of seeking taxes owing for prior years, and must be paid whether or not the taxpayer has retained the funds in good faith, so every valid taxpayer refund claim is always retroactive; the refund necessarily stretches back in time, and the monies are always refundable regardless of whether the state collected in good faith or not. One illegally holding another’s money always has to return the funds no matter what the holder’s intent was in collecting it. So in a preliminary ruling I wrote, the commission held that if the federal pensioners could establish discrimination, they would receive full refunds. That ruling was two years later upheld by the U.S. Supreme Court in another case presenting the same question.[2]

There was another preliminary issue we then had to decide: whether the 25,000 taxpayers could proceed as a class rather than as 25,000 separate cases and 25,000 trials? That question also was a no-brainer; for the issue in each of the 25,000 cases was the same legal question; there were no issues of fact for a trial—just one common legal question: whether the Wisconsin statutory disparity in taxation was unlawful discrimination. The only difference from one case to the next was the amount of the refund, a mathematical, not legal, question. In a second opinion I authored, the commission allowed the class action to proceed on the issue of the department’s alleged liability for refunds.

Right after that ruling, I received a call from the governor’s chief-of-staff, Ed Marion, who said the department of revenue was “very upset” with me. In a newspaper interview later on, Marion said his purpose was to let me know “which way the wind was blowing” on my rulings. I was stunned by the call; the governor is a party, through his department of revenue, to every tax case our court hears. For Marion, the governor’s top assistant and a former judge, to make such a call was a serious breach of the canons of ethics, as well as a state statute, both of which prohibit parties to a lawsuit from making private, ex parte overtures to judges hearing their cases. I tried to make myself believe that this was a stupid mistake and no harm had been done.

As it turned out, I was being terribly naive. Things got worse. After making another ruling on the class action question, I received a surprise phone call from colleague Mark Musolf, the then-recused chairman of the tax appeals commission about my ruling. Musolf had been forced to disqualify himself from the pension case because of his involvement as secretary of the department of revenue when some of the pension taxes were collected; in fact he had been a defendant in the case until we dismissed him on the grounds that the commission had no jurisdiction over him individually since our jurisdiction only extended to taxpayers and the department of revenue, not individual defendants. Musolf said, “How can you do this when your reappointment is up—you’re making a laughingstock of the commission.” I was floored.

The realization finally dawned on me that my turn-of-the-century job security was not very solid. Other events I hadn’t given much thought to now began to make more sense. For one thing, I now better understood Musolf’s previous statement that when the subject of the pension case came up at the governor’s Thursday cabinet meetings (which Musolf would attend—why I don’t know, for the commission is or was an independent judicial body), that the governor constantly complained to Musolf about my rulings in the case, rulings the governor saw as busting his budget.

On one occasion, the governor started carping at Musolf and Musolf said, “It’s not me—it’s Bartley”; the governor, according to Musolf, “rolled his eyes”. At the time Musolf told me of those exchanges, I didn’t give them too much thought, for I was confident the governor, himself a lawyer, must or would realize that our decisions were legally sound.

Despite Musolf’s very disturbing call, I decided I was going to go ahead and decide the case as I always had tried to do solely on the basis of the law as applied to the facts. I still had faith that Thompson wouldn’t renege on his promise to reappointment me. At a state bar tax seminar that December, I confided in fellow commissioner Tom Timken who had joined me in the pension case ruling. He was stunned that Musolf had said what he did; but we agreed that I should just ignore the thing, go on with the business of the case and the commission, and hope for the best.

After Musolf’s call, the department of revenue formally asked us to reverse our rulings. We declined and issued a lengthy opinion elaborating our reasons. In late February 1993, shortly before my interim one-year term was expiring, I wrote the governor’s office about my salary for the next six years. Then in early March, while the pension case was at the merits stage, the governor’s personnel director, Pat Reuter, called me and said, “The governor told me to tell you that he was not amused” by the letter and that my re-nomination was “not secure”. I reminded Reuter that the re-nomination had already been promised, and Reuter replied that she would get back to me.

The pension case was still then very active. In early March, right after my conversation with Reuter, I had to issue an order to Mark Bugher, secretary of the department of revenue and a Thompson appointee (who since succeeded James “Herr” Klauser as Thompson’s “facilitator”), under threat of sanctions, to provide the pensioners with information which the department had previously agreed to provide, a promise on which the department had reneged.

A day or two later, Marion, returning a call I had placed just after talking to Reuter, confirmed that I indeed had been promised the re-nomination and told me he had told Reuter the same thing. Marion volunteered that he would that evening remind the governor of the promised re-nomination.

I waited for word. Nothing happened for three weeks when Reuter finally called back. She told me I would have to attend an interview in Madison with the governor’s legal counsel and the state treasurer, among others, concerning my “goals and objectives”. I asked whether Marion hadn’t confirmed the re-nomination promise. Reuter said, “Not exactly.” I didn’t have the presence of mind to ask the obvious lawyer-like question, “Well exactly what did he say?”

I was surprised by the interview request and the identity of the interviewers (the state treasurer??) Was she going to dock my paycheck $150 million? Give me a lecture on the importance of a steady state cash flow?). I accepted, but over the next 24 hours ruminated on it. The “interview request” about my goals and objectives at first baffled me—my performance for six years on the commission was well known to the governor. Trial judges, appeals judges, private practitioners, and state and federal agency heads had written the governor praising my work. The governor himself had praised me for my “proven skills and dedication.” And even the Wisconsin Supreme Court had spoken highly of my work in two published decisions.[3] (The praise of the latter two sources now worries me—I must have done something wrong to earn it.)

Fearing the “interview” would be another occasion for me to be grilled with more threats concerning the pension case, and wondering why I had to be interviewed for a job I had already been guaranteed and which I had held for some six years, by fax about 72 hours before the interview, I declined the invitation unless and until I was given confirmation of the promise of re-nomination. I was by then convinced I was not going to be re-nominated and that the interview was window dressing for a decision the governor had already made to appoint someone else. But I did say in my letter to the governor that I would be glad to come out and discuss the general nature of our work at the tax appeals commission at any time.

The governor never responded to the question of the prior re-nomination promise, but instead, by fax from new chief-of-staff Bill McCoshen delivered just two hours before the “interview”, insisted I attend, threatening to “proceed accordingly” if I didn’t show. That same afternoon, Musolf told me that Mark Bugher, the secretary of revenue, was “very unhappy” with me because of the pension case.

As it turned out, I was right in believing I was going to be fired, for during the same week I was contacted about the “goals and objectives interview”, the governor had already recruited Joseph Mettner, a former assistant to the governor and a lawyer who represented the department of revenue in the pension case. Mettner was officially nominated two days later, but couldn’t take over until he was confirmed by the state senate.

The matter turned into a bit of a scandal in the senate and the newspapers, after I recused myself from the pension case and revealed many of the details of what had happened. McCoshen told the Milwaukee Journal that all my claims were “ridiculous”. I learned later that at a Rotary Club luncheon, Thompson had told a lawyer friend of mine who had approached Thompson to urge him to reappoint me, “He’s a dead man.”

Thompson himself told the press the reason I was canned was that I had refused to be interviewed, though that was immediately contradicted by Joe Mettner’s comments in another news article that he had been recruited by Thompson’s office for the job a week before my “interview”. If they ever were acquainted with one another, Thompson and the truth ought to be reintroduced. Like Clinton, Thompson “is a man of his most recent word,” to borrow from Mr. Buckley.

In the meantime the Republicans had captured control of the state senate for the first time in 25 years. Mettner, after a fairly extended battle, was finally confirmed some seven weeks later, by a straight party line vote, 17-16, Democrats in the minority. I am a lifelong conservative Republican; my friends, though supportive throughout the whole episode, were much amused that the only votes I got in the state senate were from liberal Democrats.

Like George Watts, I decided to fight. The late Gaar Steiner, the greatest lawyer on Earth, the hope of the hopeless, sued Governor Thompson for breach of contract, conspiracy to obstruct justice, and deprivation of the right of free speech. The breach of contract claim was simple: Thompson had promised to reappoint me as long as I didn’t do anything “unnatural with sheep”.

I hasten to assure readers that I didn’t, but after going through nearly three years of litigation in Bartley v. Thompson, I was thinking about putting on a spectacle that Madison wouldn’t soon forgot. Shepherds beware! Guard your flocks! Wooly-bully is on the loose! “Stick-it-to-em”!

Had I actually done something unnatural with sheep, and had been fired for it, and hired the ACLU, I would have a far stronger free-speech claim than I did—expressing my inner sheepish self through the incestuous medium of sheep. But my claim was too prosaic—only that a judge ought to be allowed to write or give decisions according to law, unrestrained or uninhibited by the threats of politicians, something actually apropos of the 1st Amendment.

My claim of obstruction of justice is, I think, equally self-evident. That claim was that the governor’s attempts to intimidate me into throwing the pension case to the state—explicitly violated this extortion statute:

In a contested case, no ex parte communication . . . or threat or offer of reward shall be made, before a decision is rendered, to the hearing examiner or any other official or employee of the agency who is involved in the decision-making process, by: 1. An official of the agency . . .; or 2. A party to the proceeding . . . . [4]

The governor (a party to the case) and Musolf (an official of the agency) both violated the statute with their telephone calls to me threatening my job unless I ruled for the state.

On the free speech claim, the trial court and the court of appeals held that I had no rights of free speech, because in writing the commission’s rulings in Hogan, I wasn’t speaking as a citizen. On the obstruction claim, the trial judge and the court of appeals refused to let me go forward to prove my allegation that the governor was the central figure in an obstruction conspiracy and that Musolf was just his messenger boy. And on the contract claim, the trial court and the court of appeals held that I had no contract with Thompson, because there was no “legal consideration” to support any contract. More on that enigma in a moment. The court of appeals also held that office holders have no contract rights in their jobs. On all claims, the Wisconsin Supreme Court and the U.S. Supreme Court merely denied review without comment.[5]

To prove my point about the state of the judiciary, I must once again pray the reader’s indulgence—we need to go through some of the detail of judicial “reasoning” in the case. The reasoning was abominable, though, unlike the baseball tax case, at least some was offered.

Free speech: Intuition tells anyone that there is something wrong about a political authority threatening a judge and removing him from office solely in retaliation for the judge having refused to cave in to the authority’s demands that he rule in the authority’s favor or be fired. Indeed that is more than intuition—it’s constitutional law—in particular the guarantee of freedom of speech. But in Wisconsin, though, neither intuition nor the constitution are reliable prophylactics to protect anyone from the huge political erections some politicians like Thompson have.

One of the most amusing arguments Thompson made in his defense against my free speech claim was that the claim “should be dismissed because plaintiff does not allege a violation of clearly-established constitutional law.” Some people will say almost anything. The argument is the equivalent of saying that the governor didn’t know specifically that it was illegal to attempt to try to chill or restrain a judge’s free speech with the threat of his firing; and when that failed, to fire him for having exercised his right of speech. The Governor did go to the University of Wisconsin, a fine law school—but in addition to missing or forgetting the rule that contracts are binding, he must have skipped the Constitutional Law lecture that the whole purpose of the 1st Amendment is to prevent government officials from strangling freedom of speech. “An ox remains an ox, even if driven to Vienna.”

Another equally vapid argument was the governor’s contention that my position as a tax judge “place[d me] in the position of policymaking . . . outside the first amendment protection . . . . (emphasis added)” That statement is an outrage. The tax appeals commission has no policy-making function at all. It serves as the state’s tax court, and its only function is to decide “all questions of law and fact” in tax cases. The commission, like a court, is entirely passive and has no role in setting policy.

Indeed it was the governor’s total disregard of that point that led him to “intervene” in the pension case in an attempt to get me to throw it. The tax appeals commission is not an appendage of the governor subject to his ex parte political tinkerings—it’s an independent agency that hears cases that always involve the governor’s own department of revenue. For the governor, who is a party to every commission case, to threaten one of the judges with termination (“How can you do this when your reappointment is up”) is as good an example of an attempt to choke speech as anything I can think of, short of the threat of violence.

Both the trial judge and the court of appeals, both sited in the Madison fever swamps of political ambition and intrigue, and relying on Pickering v. Board of Education,[6] held that I was not entitled to invoke the First Amendment, because in making his rulings in the pension case, I was not speaking as a citizen, but as a tax judge, and was not speaking on a matter of public concern.

Apart from the fact that judges cannot carve out exceptions to the 1st Amendment (even tax judges have the same free speech rights as anyone else) and that the “logic” of the rulings is that storm troopers could bind and gag a judge as he was delivering a ruling in his courtroom, the rulings have no case law or other legal support. There are no cases that say or even suggest that I had to be speaking as a citizen to be entitled to 1st Amendment protection; nor is there any basis for saying that I wasn’t speaking on a matter of public concern.

To take the “public concern” aspect first, to say, as both courts did, that the pension case, involving some 25,000 pensioners seeking $150 million in tax refunds, is not a matter of public concern, is asinine. The case was the biggest both monetarily and in numbers of people directly involved in the history of the state.

Turning to the “as a citizen” question, the rulings that I had to be speaking as a citizen are not supported by any cases. Pickering says nothing of the sort. It does not say that the plaintiff must first establish that he was speaking as a citizen, as opposed to an employee:

“[T]he state has interests as an employer in regulating the speech of its employees . . . . The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees.”[7]

The Pickering “as a citizen” language was merely descriptive of the law in terms of the facts of the case then at hand (plaintiff was a teacher complaining about the school board); it does not impose any requirement that the teacher or employee actually be speaking in his capacity as a citizen as opposed to his capacity as an employee, if such an elusive distinction could somehow ever possibly be made.

And there is nothing in post-Pickering cases establishing any requirement that the plaintiff be speaking as a citizen to be eligible to claim freedom of speech. The trial judge and the court of appeals both cited two federal cases in support of their decisions that I had to be speaking as a citizen to raise the speech issue. Neither applies.

In Egger v. Phillips,[8] the court upheld the forced transfer of a discontented FBI agent where, the court stressed, the agent’s comments had created internal havoc at the bureau. In Marquez v. Turnock,[9] the court also sustained the forced transfer of an employee whose comments were taken as threatening (to use the words of Pickering) “its interests . . . in regulating the speech of its employees” and its “interest . . . as an employer, in promoting the efficiency of the public services it performs through its employees.” Neither case really turned on whether the employee was speaking as a citizen.

In any event, there is no “balancing” to be done here for two reasons. First, unlike the authorities in Pickering, Eggar, and Marquez, Governor Thompson had no legitimate interest, but only a corrupt and illegal interest, in “regulating” my speech with threats of termination. Indeed the “regulating” that was tried was an explicitly illegal act, much like jury tampering. As Chief Justice Earl Warren once said, “Free speech is not to be regulated like diseased cattle and impure butter.”[10]

For another, our rulings neither created havoc at the commission nor disrupted its effective functioning. To the contrary, the rulings greatly enhanced the efficiency and functioning of the commission: had we ruled otherwise, the 25,000 taxpayers and one remaining commissioner would have been faced with 25,000 separate trials, tying the commission, the pensioners, and all other taxpayers with tax disputes, up for years and years.

The court of appeals also erred in holding:

“We have concluded that Bartley’s allegations that he had a contract for renomination . . . fail to state a claim. And if we were to hold, as Bartley urges, that the governor’s decision not to renominate him for another term is constitutionally impermissible, no appointed official could be dismissed, or denied reappointment, on the basis of his or her performance in the job.”

The court went on to say that the governor can appoint whomever he wants for whatever reasons and that politics “’ain’t beanbag.’”

The “no contract-no free speech rationale” absolutely contradicts settled law, most notably Mt. Healthy District Board of Education v. Doyle,[11] where the U.S. Supreme Court held the untenured plaintiff’s free speech claims were not defeated because of his lack of tenure. If the employee can show that the firing was reprisal for his exercise of his free speech rights, he may not be fired. He doesn’t need a contract:

Even though [plaintiff] could have been discharged for no reason whatever, and had no constitutional right to a hearing prior to the decision not to rehire him, . . . he may nonetheless establish a claim to reinstatement if the decision not to rehire him was made by reason of his exercise of . . . First Amendment freedoms. [12]

The court of appeals’ ruling guts judicial integrity, the sort the U.S. Supreme Court recently addressed:

For it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising [his] authority . . . shall be free to act upon his own convictions, without apprehension of personal consequences to himself. Liability to answer to everyone who might feel himself aggrieved by the action of the judge, would be inconsistent with the possession of this freedom, and would destroy that independence without which no judiciary can be either respectable or useful.[13]

When a tax judge or any other judge is doing his job, his speech is always a matter of public concern, arguably far more important than a letter he might write as a citizen, say, criticizing the school board; for the integrity of the judicial process depends on his being free to “act . . . without apprehension of personal consequences to himself.”

Obstruction of justice: Courts may not dismiss pleadings, just because they don’t believe the allegations. After we had ruled that the 25,000 retirees could proceed as a class, I received the phone call from Musolf, the chairman of the tax appeals commission who had had to recuse himself from the pension case, because he had been a defendant. Referring to my ruling, Musolf told me, “How can you do this when your reappointment is up—you’re making a laughingstock of the commission.” (Musolf also told me later that he knew Mark Bugher, secretary of revenue was “very upset” with my rulings in the case.)

In my complaint I alleged that Musolf’s “How can you do this” call was instigated by the governor as part of an obstruction of justice conspiracy to get me to throw the pension case. But the trial judge, on the governor’s motion to dismiss, and without any evidence whatever being presented, flatly rejected the allegation and dismissed the claim: “Bartley’s conspiracy claim is little more than a conclusory allegation of conspiracy built upon mere speculation regarding what could motivate Musolf to make such a statement.” The court of appeals agreed: “Bartley . . . asks us to speculate. * * * ‘Mere similarity of conduct among various persons and the fact that they may have associated with each other, and may have assembled together and discussed common aims and interests, does not necessarily establish the existence of a conspiracy.’”

It was once said, “We like to continue to believe what we have been accustomed to accept as true, and the resentment aroused when doubt is cast upon any of our assumptions leads us to seek every manner of excuse for clinging to them. The result is that most of our so-called reasoning consists in finding arguments for going on believing as we already do.[14]

The courts deciding Bartley v. Thompson reached the pinnacle of invented reasoning to support a predetermined result.

A reasonable opportunity to present one’s claims is a fundamental right universally prescribed in all systems of law established in civilized countries.[15] “The fundamental requisite of due process . . . is the opportunity to be heard.”[16] Due process requires “[s]ome form of hearing before an individual is finally deprived of a property interest.”[17] In cases where there are issues of fact, due process requires “an opportunity to confront and cross-examine adverse witnesses.”[18]

From those basic precepts, it necessarily follows that due process requires that plaintiffs be given an opportunity to prove, and have a hearing on, their well-pleaded allegations; and precludes courts from depriving plaintiffs of their rights to confront and cross-examine. Here both the trial court and the court of appeals deprived me of any opportunity to gather evidence through discovery, to confront and cross-examine Governor Thompson and other adverse witnesses, and to present evidence to a jury. My complaint alleging Thompson’s involvement in an obstruction conspiracy presented an issue of fact that required, as a matter of due process, the court to allow me to go forward. In short, due process prohibits courts from acting as uninvited fact-finders. That’s why we have juries.

Both courts, without benefit of trial, made improper jury determinations, holding that as a matter of fact, Musolf and Thompson did not collaborate, a finding of fact contrary to my allegation that Thompson had directed Musolf to make the threatening call to me, or had instigated it, an allegation that, as a matter of law and fact, had to be accepted as true for purposes of the governor’s motion to dismiss.[19] Even the two courts recognized that they had to accept the truth of that allegation for the purposes of the motion; yet once accepting it, they then promptly rejected it. This is the sort of thing that makes one want to “spit on his hands, hoist the Jolly Roger, and start slitting throats”, as Mencken once said.

And the fact that the court of appeals cited a jury instruction only hints at the grossosity of the “error”. The jury instruction says: “Mere similarity of conduct among various persons and the fact that they may have associated with each other, and may have assembled together and discussed common aims and interests, does not necessarily establish the existence of a conspiracy.” The instruction is absolutely correct—mere association does not prove a conspiracy. No one ever said it did.

Apart from the fact the case presented the bizarre spectacle of a court of appeals relying on a jury instruction to make a finding of fact in a case where there had been no trial, the court went on to ignore its own instruction to itself sitting as a jury. The instruction uses the qualifier “not necessarily”, but the court held that Musolf and Thompson, as a matter of adjudicated fact, “necessarily” had no connection, thus rejecting my contrary allegation on the grounds it didn’t believe it—the court of appeals in effect said that it was a certainty that the governor was not involved. If the court of appeals is going to disrobe and act as a jury, the least one is entitled to expect is that it follow the instruction in reaching its jury verdict.

Here we have the same sort of judicial identity crisis we saw in a forthcoming section of my treatise, where the Wisconsin Supreme Court couldn’t decide whether it was the trial court or a court of appeals, so it decided to play both parts, as well as its primary role of the state legislature’s compliance junta. The identity crisis is spreading like Ebola through the three branches of Wisconsin government.

The court of appeals thinks it’s a jury; the supreme court thinks it’s the state legislature and thinks the governor is sort of a glorified law clerk whom they may use to write their opinions; and the governor thinks he’s all three branches rolled into one, plus a social worker for baseball. Cross-dressing has become the sum of separation of power and “good government” in Wisconsin. The only separation of significance left in Madison is the cleavage that can be observed at Hooters, and it is rumored that the government is considering enacting a special sales tax to boost employment and tourism there. But the problem is that such an enactment would breach the wall of separation between boobs and other boobs.

I want to return to the court of appeals’ statement that “Bartley asks us to speculate.” The only things that are “speculative” about the Musolf-Thompson connection are both courts’ conclusory and speculative dismissals of any connection without coming to grips with any of the inferences supporting the connection.

Among other things, the judges ignored the fact that only the governor, not Musolf, has the power to nominate tax commissioners, and Musolf himself couldn’t meaningfully threaten me—therefore Musolf’s threat was likely not his own; the court ignored the content of the call—how would Musolf have known I was in jeopardy without contact with the governor’s office?; the court ignored the fact that judges, such as Musolf, don’t normally intervene in cases from which they have had to recuse; and that Musolf’s illegal intervention and extortion suggests overwhelming external pressure on him, most likely from the man to whom he owed his own appointment, the governor.

The court also ignored what happened before and in the aftermath of the Musolf call, namely the other ex parte contacts directly from the governor’s office (Marion—to let me know “which way the wind was blowing”), from Musolf again (telling me the governor’s own secretary of revenue was “very unhappy” with me), and from the governor himself (speaking through Reuter that he was “not amused” with me and that my appointment “was not secure”), as well as other subsequent events. There was nothing at all “speculative” about the link between Musolf and Thompson. As Justice Jackson once said, “What a man is up to may be clear from considering his bare acts by themselves”.[20] Thompson and Musolf were trying to fix the pension case.

But that’s all really beside the point—it’s not necessary to get into inferences about a defendant’s role in a conspiracy when a plaintiff has flatly alleged that the defendant was directing the conspiracy. As a matter of due process, the plaintiff is always entitled to an opportunity to prove any well-pleaded allegation. And the court may not dismiss the complaint just because it doesn’t believe the allegation.

Breach of contract: This was the simplest claim of all. It is absolutely clear that under Wisconsin law, at least before my case was decided, I had a contract that Thompson broke. But the trial court held there was no contract, because my promise to give up my law practice was not legal “consideration”.

“Consideration” in the contractual law sense requires the person seeking to enforce a claimed contract to have actually given up something of value, either money or a legal right. The trial court held that I hadn’t given up any legal right by giving up my law practice, the reason being, according to the court, that I was already legally obligated to give up the law practice because of the state statute prohibiting moonlighting.

That “reasoning” is idiotic, because it totally ignores the fact that at the time Thompson and I made the contract, I had the legal right to practice law. Had I had a preexisting legal duty to refrain from practicing law, then the court would have been right. But the duty was not pre-existing. It was only after the contract went into effect that I lost the right to practice law. Until then I had a right to carry it on.

If it ever took hold, the court’s novel definition of consideration would cancel every contract ever made, for the definition has an impossible circularity to it, a circularity that says that the instant parties for valuable consideration agree to a contract, the consideration to support it is extinguished by the fact that they are legally obligated to perform. Contracts would die the very instant they were born.

To give an illustration. Assume company A and prospective employee B were on a Friday to agree on employment terms for a one-year contract beginning Monday. Friday B quits his existing job. Monday he reports for work at A, but A tells him, “Sorry, we changed our minds.” No one, except certain Wisconsin trial and appellate courts, would ever contend that B hadn’t given consideration to enforce A’s promise. But that’s the rule in Wisconsin now—after Bartley v. Thompson.

One doesn’t really even need to deal with the law practice termination issue at all, for my performance of the other part of my renomination bargain with the governor—satisfactory performance on the job—was “enough” consideration to support the contract, an issue that neither court addressed. That’s something that our higher courts do a lot of when there are troublesome barriers to the desired result—just ignore them or deem them away. “Many men,” said Holmes, “especially as they grow older, resent attempts to push analysis beyond consecrated phrases, or to formulate anew. Such attempts disturb the intellectual rest for which we long. Our ideal is repose, perhaps our destiny is effort, just as the eye sees green after gazing at the sun.”[21] The most charitable thing one can say about the court of appeals decision in Bartley v. Thompson is they fulfilled their “ideal of repose.”

Even were I a professional sunbather at the time the promises were exchanged, there still would have been consideration on my part to form a contract and enforce the governor’s promise. Consideration can be either the promise of performance or the performance itself:

“(1) To constitute consideration, a performance or a return promise must be bargained for. (2) A performance or return promise is bargained for if it is sought by the promisor in exchange for his promise and is given by the promisee in exchange for that promise. (3) The performance may consist of (a) an act other than a promise . . . . or (c) the creation, modification, or destruction of a legal relation.”[22]

Translated into the case at hand, and leaving aside the law practice relinquishment as of itself lawful consideration, the consideration bargained for by the governor in exchange for my renomination promise to me, and given by me, was my promise of performance of the work in a satisfactory manner, my actual performance in a satisfactory manner,[23] and the creation of a new legal relation between me and the state, where I would work full-time on the commission forsaking all other work. My job performance alone was consideration.

The situation parallels the classic, first-year contracts example of the uncle telling the nephew, I will pay you $5,000 if you refrain from smoking, drinking, cards, billiards, and swearing until you are 21. The nephew abstains. He is entitled to be paid, because he completed the requested performance.[24] My case parallels. I agreed to accept the job on the condition that I be paid the agreed sum and on the condition that I be renominated after the first term expired. I promised to perform and did perform. I was contractually entitled to be re-nominated. But first-year contracts, as well as the 1st Amendment and the right to a jury trial were lectures our judges also skipped or have long since forgotten.

The court of appeals upheld the trial court on the contract issue, but gave a different, but equally-twisted rationale:

“The requirement that [Bartley] give up his [law] practice was not one imposed by the governor—the person Bartley claims was the only other party to his “contract”; it was imposed by legislation * * * The trial court could properly conclude on these facts that [Bartley’s] * * * claim failed for lack of consideration.”

What the court of appeals was saying, apparently, is that my promise to terminate my law practice and my performance of that promise were not consideration, either because the performance resulted in no benefit to the governor, or because the promise and performance were not sought by the governor. Neither contention is sound.

For one thing, there need be no benefit to the governor; detriment to me was enough. And the forfeiture of the law practice—something I was otherwise entitled to continue—was all the “detriment” needed to uphold the contract.

For another, the governor did seek the promise to give up the practice. To say otherwise would be the equivalent of saying that governors couldn’t care less whether their nominees moonlight in violation of contract. Moreover, “[i]t matters not from whom the consideration moves or to whom it goes. If it is bargained for and given in exchange for the promise, the promise is not gratuitous.”[25]

Third, there is no logical distinction between a private contractual provision prohibiting moonlighting and a statutory one. In both cases, the employee puts himself under an obligation to work only for the employer.

Fourth, “consideration * * * may consist of . . . the destruction of a legal relation.”[26] My termination of my law practice qualified as a destruction of the legal relations between me and my clients.

Because of the obvious paucity of reason applied in its analysis of the consideration question, the court of appeals went on to hold that any contract I had was void as against public policy:

“The very nature of the concept of public office and its relation to the public is inconsistent with either a property or a contract right in the office. * * * The office belongs to the people, not the office holder or the appointing authority. * * * And that is why the law invalidates any ‘bargain’ made by a public official to appoint a particular person to office.”

“In modern life,” said Oscar Wilde, “nothing produces such an effect as a good platitude.” The court’s statement makes good rhetoric, but it erases the numerous U.S. Supreme Court rulings that public employees have job tenure if they have a contract;[27] and it flatly overrules Wisconsin law.[28] Carried to its illogical conclusion, the court of appeals decision would abrogate seemingly all public employment and perhaps even other public contracts.

Common sense tells us that a state may not escape its contractual obligations to its public employees through the ruse of declaring that public employees don’t have contracts. That sort of “logic” knows no principled limits. Accepting it would mean that states could avoid federal constitutional commands through the artifice of redefinition.

For example: Protected political speech could be negated by redefining “speech” so as to exclude political rallies; the Establishment Clause, prohibiting state-established religions, could be abrogated by redefining “religion” to exclude, for example, Episcopalianism, the effect being to make that creed a state “religion”; Fourth Amendment “probable cause” could be recast to mean “the slightest suspicion”. And so on. But the Wisconsin Court of Appeals, unfazed, redefined the constitutional term “contracts” to exclude public employment contracts.

* * *

The rule of law in Wisconsin thus began the new century in a “Brave New World”, ushered in by the death of contract, the executive branch’s hostile takeover of the state’s independent law courts, and by the new reality that victims of official lawbreakers aren’t entitled to jury trials or due process on their claims and must produce signed confessions before seeking redress. The prospects are chilling.

“[T]here is no liberty, if the power of judging be not separated from the legislative and executive powers,” Hamilton said in Federalist No. 78. “The complete independence of the courts of justice is peculiarly essential in a limited Constitution.” Hamilton’s words refer to one of the principal grievances of the colonies against King George. As the Declaration of Independence put it, “He has made Judges dependent on his will alone, for the tenure of their offices, and the amount and payment of their salaries.”

Thompson, with his attempted extortion in Bartley v. Thompson, became sort of a “Duke George” of the Wisconsin of the Nineties. Then, as Secretary of Health and Human Services in the Bush administration, he presented and now, seeking a seat in the U.S. Senate, still presents clear and present danger nationally.

The more serious danger is the court opinion pardoning Thompson for his extortion. The opinion will embolden politicians seeking to subvert the judicial process and at the same time turn even more judges into jellyfish.

Over 100 years ago, Sir Henry Sumner Maine, observed that “the movement of the progressive societies has hitherto been a movement from Status to Contract.”[29] The events in this case suggest that “Status”, or as Maine called it, “the Law of Persons”, is a constant threat that continues to rear its ugly head. Bartley v. Thompson could turn out to be not only a fatal blow to the sanctity of judicial independence and of contract, but also the ability of litigants to get to the bottom of official law-breaking. And that “ain’t beanbag”, to use the court of appeals’ expression.


[1] At the tax commission, there were three rulings I authored. See ¶¶ 203-336 (1992), 203-377 (1992), and 203-397 (1993), CCH Wis. Tax Reptr.

[2] Harper v. Virginia Board of Taxation, 509 U.S. 86 (1993)

[3] William Wrigley, Jr., Co. v. Wisconsin Department of Revenue, 160 Wis.2d 53, 465 N.W.2d 800, 812 (1991); Cleaver v. Wisconsin Department of Revenue, 158 Wis.2d 734, 463 N.W.2d 349, 352 (1990).

[4] Section 227.50(1)(a), Wis. Stats.

[5] The U.S. Supreme Court’s refusal to hear the case was not shocking. That court gets about 6000 such requests a year and grants less than 2% of the requests.

[6] 391 U.S. 563 (1968).

[7] Id. at 568

[8] 710 F.2d 292 (7th Cir. 1983)

[9] 967 F.2d 1175 (7th Cir. 1992).

[10] Kingsley Books v. Brown, 354 U.S. 436, 447 (1957) (dissenting).

[11] 429 U.S. 274 (1977)

[12] Id. at 283-84.

[13] Bradley v. Fisher, 80 U.S. 335, quoted in Antoine v. Byers & Anderson, 113 S.Ct. 2167, 124 L.E.2d 391, at n. 10. (1993).

[14] Robinson, James Harvey, The Mind in the Making, Harper & Brothers, New York, N.Y. (1921), p. 41.

[15] Twining v. New Jersey, 211 U.S. 78, 111 (1908).

[16] Grannis v. Ordean, 234 U.S. 385, 394 (1914).

[17] Mathews v. Eldridge, 424 U.S. 319, 333 (1976).

[18] Goldberg v. Kelly, 397 U.S. 254, 269 (1970).

[19] Evans v. Cameron, 121 Wis.2d 421, 426 (1985).

[20] Cramer v. United States, 325 U.S. 1, 33 (1945).

[21] Eulogy on William Allen; Speeches, Little Brown & Company, Boston, Mass. (1934), p. 53.

[22] Restatement 2d, Contracts, §71.

[23] In the case, the governor claimed that the pension case ruling was not the cause of my demise; and made no claim that I was discharged for unsatisfactory work.

[24] Hamer v. Sidway, 124 N.Y. 538, 27 N.E. 256 (1891).

[25] Restatement 2d, Contracts, §71, comment e.

[26] See n. 22, supra.

[27] Board of Regents v. Roth, 408 U.S. 564, 577 (1972).

[28] The statement overrules State v. Verage, 177 Wis. 295, 299, 187 N.W. 830, 832 (1922), holding that a public office is a property right.

[29] Ancient Law, Henry Holt & Co., New York, N.Y. (1888), pp. 164-65.

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Published in: on September 30, 2013 at 1:05 pm  Leave a Comment  

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