Saturday, August 27, 2011

Iowa Corn Growers Association felled by the Gillette Torvik Blog?

Last Saturday, August 20, the Gillette-Torvik blog pointed out that the new Cy-Hawk Trophy was, to put it mildly, not a very good trophy. Three days later, Craig Floss, CEO of the Iowa Corn Growers Association, announced that the trophy would be changed. If the name Craig Floss seems familiar to our readers it is because we reported that the same Mr. Floss said that trophy that the Iowa Corn Growers Association wanted to use was "literally a work of art" when he was trying to get people excited about statute of a baseball-hat-wearing man kneeling next to a basket of corn in front of a woman and two children.

Rather than admit total defeat by using the old trophy, the Iowa Corn Growers Association is going to design several new trophies and let people vote as to which one should be new Cy-Hawk Trophy. I assume this voting will be done via the Internet. I am sure that will work out great. After all, it is little-known fact that Michelangelo and Leonardo Da Vinci both used social media to determine what their works of art should look like. Moreover, it was online voting that led to such totally reasonable results like the time internet voters said that a bridge in Hungary be named for Stephen Colbert or when Ataturk was voted to be Time Magazine's most influential person of the 20th Century.

In any event, while so-called "Mainstream Media" has yet to acknowledge our role in causing the change of trophy, the timing of the decision makes it pretty obvious that our post is the reason that the new trophy was withdrawn. No need to thank us.

Friday, August 26, 2011

No charges in Prosser v. Bradley; Abrahamson proposes to make court conferences public

UPDATE: Mr. Gillette scooped me on this.  See the next post below for his remarks.

The special prosecutor appointed to investigate the Bradley v. Prosser fracas has decided not to press any charges.  (Amusingly, this story appears in the "Crime & Courts" section of the website. It is hard to think of a more appropriate section name.)

The Wisconsin State Journal has received and posted all the police reports and interview summaries (including accounts from all six of the justices who were present for the incident).

Unsurprisingly, the accounts differ.  I haven't yet read them in detail, but summaries are available here and here.  One interesting fact: the accounts appear to be anonymous unanimous that the incident did not take place in Bradley's inner office.  Instead, Prosser was standing in the office of Bradley's secretary, and the incident occurred when Bradley came out of her office to confront Prosser there.

Another tidbit.  Justice Gableman says that Bradley is taller than Prosser, that she rushed him and supposedly punched the air around his face, and that the scene reminded him of this famous photo, with Justice Bradley in the role of LBJ and Prosser in the role of Senator Green:

This reminds me of something my brother overhead someone say at a restaurant once:  "LBJ would have just killed that guy."

In other but related news, Chief Justice Abrahamson has proposed to respond to the justified crisis of confidence in her court by making court conferences open to the public.  These are the meetings where the justices argue about how to vote on individual cases.  Abrahamson's notion is apparently that making the conferences public would force the justices to be on better behavior.

Mr. Gillette, I'm curious what you think about this idea.  The first word that comes to my mind is: "ridiculous."

Special prosector attempts to save Wisconsin Supreme Court from itself.

As reported by Bloomberg, the special prosecutor assigned to determine whether criminal charges should be filed as a result of the incident between Wisconsin Supreme Court justices David Prosser and Ann Walsh Bradley, has decided that no criminal charges will be filed. One would hope that this decision would allow the justices on the court to stop regularly embarrassing itself.

However, I think that hope is forlorn. While Justice Prosser didn't respond to press inquiries regarding the decision, Justice Bradley did. Her response to the press was that her focus was on "workplace safety" and that "criminal charges alone would not have addressed our safety in the workplace and the special prosecutor’s decision not to file charges does not resolve the safety issue, either.”

My translation of Justice Bradley's response is that this isn't over. My prediction is that the Wisconsin Supreme Court is going to continue to embarrass itself for the foreseeable future.

Saturday, August 20, 2011

Should Prosser have recused?

The New York Times editorial board has weighed in on the dysfunction at the Wisconsin Supreme Court.  The only interesting aspect of the editorial, to me, was the Times' assertion that Justice Prosser should have recused himself from the collective bargaining case because "his vote to uphold the law occurred shortly after his re-election campaign in which he benefited from heavy anti-union independent spending."

I think this is quite wrong. Prosser's reelection became a focal point for "left-leaning" folks around the country because it was the only thing going after Wisconsin's new Republican majority pushed through the anti-public-union measures earlier this year.  In other words, people wanted to send a message to Republicans that they'd overreached, and Prosser was their sacrificial lamb. "Right-leaning" folks responded in kind, which is why "anti-union" forces contributed to his campaign.

Prosser won. But everybody knew how he was going to vote on that particular case the moment it was filed. (Leave aside for the moment that the case was pretty clear on the merits, ideology aside.)  The fact that pro-union groups turned Prosser's reelection into a proxy war over the collective bargaining bill does not make any reasonable person question his impartiality (at least not any more than they would had the proxy war never occurred).

Moreover, the idea that Prosser is somehow beholden, or even seemingly beholden, to those campaign contributors is absurd. This is not the House of Representatives, where another election is right around the corner, and raising campaign cash is a full time job. Prosser is 68-years old and was just reelected to a ten-year term. The chances of him ever needing to raise or spend another dollar of campaign funds are nil -- even if his term isn't cut short for supposedly choking Justice Bradley.

Indeed, if it were the law that Prosser had to recuse in that case, it would only increase the partisanship and gamesmanship involved in judicial elections. It would give some issue advocates a no-lose opportunity: make an issue out of an upcoming case and (assuming the other side responds) at the very least you get rid of Justice you don't like for that particular case. The other side would have a no-win.  For example, it would have presented the anti-union forces with an impossible choice -- by seeking to participate in democracy (by influencing the likelihood of Prosser's election), they would undermine the democratic result they sought to achieve (Prosser's ability to decide the question at issue).

In short, there was an election. Deal with it.

College football season approaches.

In college football there are many rivalries. Some, like the Ohio State-Michigan game or the Iron Bowl, are known to even non-fans. Others, like the Friends of Coal Bowl, are glorified advertisements for a product and I doubt even the most ardent fans refer to the game by the purported title. And some are in-state or perhaps neighboring state games where the rivalry is only important to fans in the area.

The Cy-Hawk Trophy used to fall into the last category. There are a number of reasons for this. First, Iowa and Iowa State did not play each other in football between 1935 and 1976. So the rivalry is not very old. Second, the schools are not in the same conference so the game doesn't have much relevance to conference standings. Perhaps most importantly, there are a lot of years when neither team is very good. Iowa State is almost always in the bottom third of its conference and Iowa, while more successful than Iowa State, is usually not in the top third of its conference. Since the game isn't a match up of two powerhouses, it doesn't get a lot of attention.

What is unusual about the rivalry is that it has apparently decided to change itself from one of intrastate importance into a glorified advertisement for a product. How is it doing this? By changing its trophy. Since the rivalry restarted in 1977, the teams have played for this trophy:

[Picture no longer available. But it was a sight to behold.]

It is fair to say that this trophy did not rival the Little Brown Jug or Old Oaken Bucket in college football lore. It may even be fair to say that the trophy looks like a sixth grade shop class project. However, I thought it had a certain, amateurish, charm.

The Cy-Hawk trophy has been retired and replaced by this.

The new Cy-Hawk football trophy was unveiled Friday at the fair.

If you look at the picture, then I probably don't have to tell you that the reason for the trophy change is that the Iowa Corn Growers Association and the Iowa Corn Promotion Board are the new sponsors of the game/trophy. Some might suggest that this trophy looks like it was designed by Bob Vander Plaats or that it looks like a statute you might find at a garage sale. However, as the Des Moines Register reports, Craig Floss disagrees. Mr. Floss is happy to inform you that the new trophy is "literally a work of art representing the people and characteristics that are uniquely Iowan." It is unclear what about the picture is uniquely Iowan there are reports that non-Iowans grow corn, stand, kneel, and wear clothing. Perhaps it is uniquely Iowan to do all three.

Who is Mr. Floss? Is he a noted art critic? No, he is the chief executive officer of Iowa Corn. By pointing out his job title, I do not mean to suggest that he doesn't know anything about art. Note that Mr. Floss said the trophy was "literally a work of art." Mr. Floss did not say that that it was a work of good art.

I am still looking forward to the upcoming college football season. As a former Iowan who did not attend either of the two institutions, I hope that both Iowa State and Iowa have good seasons (neither is expected to win their conference). I just wish they hadn't turned their game into an advertisement for something besides their respective schools.

Disclosure: I believe, but am not completely sure, that one of my uncles was the president of the Iowa Corn Growers Association back in the 1970s. In any event, several of my relatives grow corn and I hope they continue to prosper doing so.

Sunday, August 14, 2011

That was fast.

As most Minnesotans will tell you, we really didn't have a governor between the 2008 presidential election and the 2011 swearing in of current governor Mark Dayton. The reason for this was that Tim Pawlenty, the ostensible governor, was either running to be the GOP vice-presidential candidate under John McCain. You may have heard that Senator McCain picked someone else. Once Senator McCain lost the election, Governor Pawlenty started running to be the GOP nominee for president. It would be an understatement to say that Governor Pawlenty spent a lot of time in Iowa.

Despite this, Governor Pawlenty did not capture the hearts of Iowans. He came in a distant third in the the Iowa GOP straw poll yesterday. Now, he has decided to drop out of the race. I don't know whether to commend him for being realistic, deride him for not having the courage to stand as a candidate until an actual, you know, primary or caucus, or simply point out that the GOP race is still full of people who will never, ever, ever, be the GOP nominee for president in 2012.

Friday, August 12, 2011

Retaliation claims are not the same as discrimination claims.

As reported back in May, a federal jury found for the plaintiff/employee on a wrongful termination claim against the Madison Area Technical College. Dr. MichaelDubin, a history professor at the college, claimed that he suffered religious discrimination based on religion as well as retaliation for opposing unlawful discrimination.

As the Courthouse News notes, Dr. Dubin, who is Jewish, was apparently called --among other things--a "litigious Jew" by his supervisor. However, the jury verdict was solely on the retaliation claim as the religious discrimination claim was dismissed on summary judgment. This should not lead the reader to conclude that it is okay to call people litigious Jews. It is not.

As the summary judgment order makes clear, the religious discrimination claim failed because Dr. Dubin's religion was not known to the people who made the decision to terminate him. Since they didn't know his religion, the folks who terminated him couldn't have decided to terminate him because of his religion. They did however, know that he had complained about discriminatory comments.

They jury, apparently persuaded by the fact that Dr. Dubin was the only professor to complain about discriminatory comments and also the only professor (out of 18) on a probationary period who was not hired at the end of the probation period, found for the doctor on his retaliation claim.

In addition to seeking back pay and emotional distress damages, Dr. Dubin also sought reinstatement at the college. As a reinstatement is an equitable remedy, the court gets to decide whether to grant reinstatement. Judge William Conley decided to grant reinstatement this week. He also affirmed the award of lost wages (plus prejudgment interest) and lowered the emotional distress damages award to reflect the fact that emotional distress damages on federal religious discrimination claims are capped at $300,000. In other words, Dr. Dubin won just about everything he could have expected to win at trial.

What should one take away from this case? First, terminating employees shortly after they make discrimintion complaints is a bad idea. Second, just because a discrimination claim is found to lack merit, does not necessarily mean that a retaliation claim will also lack merit. As this case makes clear retaliation claims are seperate and distinct from discrimination claims and can lead to a completely different result.

Tuesday, August 2, 2011

Humor from Justice Ginsberg.

Jess Bravin has posted a text of remarks that Justice Ginsberg recently made to the Otsego County Bar Association. Given that the New York Times reported earlier this year that Justice Ginsberg is, if one discounts Justice Thomas, the least funny Supreme Court justice, one might expect the remarks to be a little dry. However, perhaps in response to Mr. Liptak's reports, Justice Ginsberg opened with plenty of humor.

Specifically, Justice Ginsberg gave her audience a rundown of some questions her colleagues asked at oral argument this year. She also included citations to the various transcripts. Anyway some of the incisive questions posed by members of the highest court in the land included:

1. What did James Madison think of video games?
2. Isn’t evidence always destroyed when marijuana is smoked, isn’t it being burnt up?
3. Does al-Queda know this stuff?
4. Why are you here?
5. Why are we all here?
6. I know your client doesn’t care, but we still have to write an opinion. So what is the answer?
7. Is the snake covered?
8. Where is the 9000-foot cow?
9. What do you think about Satan?

These kinds of questions give a new perspective on why Justice Thomas doesn't speak at oral argument.