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Friday, March 28, 2008

Club for Growth is even smaller than I thought

by folkbum (not an attorney--anyone who is who sees errors should let me know right away)

This started as more updates to my previous post, but it's a little long for that. I'll start with a recap:
  • Bob Dohnal files a complaint (.pdf) that Justice Louis Butler is illegally using corporate resources (the Milwaukee firm of Friebert, Finerty, & St. John (FFSJ)) for his campaign.
  • The Wisconsin Club for Growth follows that up with an "email update" all about the complaint, and including links to "evidence."
  • One piece of evidence is a list (.pdf) of 35 cases before the Wisconsin Supreme Court involving attorneys from FFSJ.
  • The list includes two cases--petitions, really, in the same case--brought by a John D. Finerty. CFG claims this is the same John D. Finerty who for a time served as Butler's campaign treasurer; it turns out to have been John D. Finerty, Jr., a completely different attorney at a completely different firm. (Even though I contacted WICFG, they still have those cases on their list.)
From there, I kept looking at the list from CFG. (I searched Supreme Court opinions and WSCCA.) It has a number of other problems:
  • It lists single cases multiple times. For example, 2004AP003179 is listed six times, all under the name of attorney Matthew O'Neill. Several other cases are listed under multiple attorneys' names, if more than one attorney was involved--like 2005AP002224, which is listed under three different attorneys' names.
  • The list includes cases Butler recused himself from. According to an email from a senior advisor with the campaign, six cases on the list--including some listed more than once under different attorneys' names--were cases Butler recused himself from.
  • When you eliminate duplications, the wrong Finerty, and recusals, you get a list of eight--down tremendously from 35. That's some incredible shrinkage for a group called Club for Growth.
When you start reading those eight cases, you find other problems with their list:
  • One case does not seem to have anything to do with lawyers from FFSJ. 2005AP1042 is credited by CFG as involving Robert H. Friebert, but his name is nowhere to be found. In addition, Butler's concurrence in that case takes a turn that you would think CFG and its ilk would like: "[I]t remains the role of the legislature," he writes, "not the judiciary, to rewrite legislation where necessary to implement positive public policy goals." Isn't that kind of the opposite of the judicial activism Butler's opponents accuse him of?
  • One case, 2005AP002224, was a "voluntary dismissal."
  • Several cases featured Butler seeming to rule (usually concurring) against the FFSJ attorney in the case. These are 2003AP001225, 2004AP000377, and 2005XX021704 (the Brian Burke case, where the court upheld the recommendation of referee Rick Esenberg to suspend Burke's license).
That gets CFG's list of 35 cases down to three--three--where a conflict of interest might have shown. How's that for shrinkage? Club for Growth, in what has to be among the most underhanded moves of all the underhanded moves we've seen so far this election, puts out a list of conflict-of-interest cases that is at best 90% crap. At best. Ninety percent. Crap.

But let's look at those three cases: 2004AP003238, 2004AP003179, and 2004AP00319. Butler was in the majority on all of those cases, and had he changed his vote--i.e., had FFSJ actually bought Butler with their "work" for him--it would not have made a difference. In all of those cases, at most only two justices dissented--that is, Butler was not the tie-breaking vote in any of those cases. (And in all of those cases, he sided with the more "conservative" side of the court, as well.)

Further, there is also no evidence--if CFG has some, I'd like to see it--that Butler did not inform the opposing parties that he had some affiliation with FFSJ. And those parties were not slouches--they included Northwest Airlines, for example, whom I would presume to have counsel smart enough to raise the issue if they thought there was a real conflict.

So that's what Club For Growth gets shrunk to--three cases where if there were a conflict of interest, it wouldn't have mattered.

Perhaps most upsetting in all of this is the origin of the complaint itself. Dohnal and his enablers, all slaves to the notion that a dimwitted but loyal Gableman is better than an independent Butler, are working on the presumption that Louis Butler is stupid. Somehow, they think the guy who was so good with the law to be called, affectionately by his friends and now pejoratively by his enemies--"Loophole Louie" has now lost all ability to follow the law. Butler is a smart man (reading through his opinions, concurrences, and dissents this morning was more intimidating than reading the parts written by the other justices, I tell you what), and to suggest that he is too dumb to follow campaign finance law and basic ethics is idiotic itself. But, then again, coming from Dohnal and CFG, I suppose that's what we should have expected.

Many thanks to the illusory tenant, who helped me through some rough patches in this analysis.

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