Chicago-Style Conflicts

.@DanODonnellShow on how the Jussie Smollett decision in Chicago offers lessons for Wisconsin on political and personal bias in the justice system @MacIverWisc #WIright #WIbudget Click To Tweet

March 27, 2019

Special Guest Perspective by Dan O’Donnell

One need only look a few dozen miles south of the Wisconsin border to understand the importance of impartiality in the judicial system and recognize the damage its absence can do.

Three days after Smollett was allegedly attacked, former First Lady Michelle Obama’s former chief of staff Tina Tchen emailed Foxx “on behalf of Jussie Smollett and family who I know.” Click To Tweet

Cook County State’s Attorney Kimberly Foxx stunned the nation when she announced that prosecutors had agreed to drop all 16 felony charges against “Empire” actor Jussie Smollett and expunge his record.

“After reviewing all of the facts and circumstances of the case, including Mr. Smollett’s volunteer service in the community and agreement to forfeit his bond to the City of Chicago, we believe this outcome is a just disposition and appropriate resolution to this case,” Foxx said in a news release.

Foxx that claims she did not make the decision herself, but it comes just a few weeks after she essentially acted as Smollett’s advocate by asking Chicago Police Superintendent Eddie Johnson to drop his department’s investigation.

Three days after Smollett was allegedly attacked, former First Lady Michelle Obama’s former chief of staff Tina Tchen emailed Foxx “on behalf of Jussie Smollett and family who I know.”

Tchen, a close friend of Chicago Mayor Rahm Emanuel’s wife, asked that Foxx call her to hear the Smollett family’s “concerns about the investigation.”

The Chicago Tribune reported:

“Spoke to the Superintendent Johnson,” Foxx emailed Tchen back on Feb. 1. “I convinced him to Reach out to FBI to ask that they take over the investigation.”

The same day, Foxx texted with Smollett’s relative, whose name was blacked out in copies released by her office.

“Spoke to the superintendent earlier, he made the ask,” Foxx wrote. “Trying to figure out logistics. I’ll keep you posted.”

“Omg this would be a huge victory,” the relative replied.

“I make no guarantees, but I’m trying,” Foxx wrote back.

Foxx and the family member texted each other and exchanged phone calls for the next two weeks—right up until just a few hours before the Cook County State’s Attorney’s Office suddenly announced that Foxx “is recused from the investigation involving victim Jussie Smollett. First Assistant State’s Attorney Joe Magats is serving as the Acting State’s Attorney for this matter.”

Magats, the State’s Attorney’s Office insisted, ultimately decided to drop all charges, expunge Smollett’s record, and even successfully lobby a judge to seal all records related to the case.

Foxx, the State’s Attorney’s Office said with a straight face, had absolutely nothing to do with what turned out to be “Omg…a huge victory” for Smollett.

The Chicago Police Department is understandably livid, as it produced irrefutable evidence that Smollett had in fact orchestrated a fake hate crime. That evidence, however, was ultimately meaningless, as Smollett’s political connections seem to have thwarted the administration of justice.

That even investigators on the Smollett case believe that Foxx’s shamefully unethical behavior led her office to take a dive illustrate why it is so vital that everyone involved in the justice system free themselves from the even the appearance of a conflict of interest.

The interests of justice cannot be furthered if the public does not have confidence that those interests aren’t subject to political or personal whims of those who swore loyalty only to the Rule of Law. Click To Tweet

The interests of justice cannot be furthered if the public does not have confidence that those interests aren’t subject to political or personal whims of those who swore loyalty only to the Rule of Law.

When their actions advance or even appear to advance anything but, the legal system itself is thrown into chaos. How else could one describe the Rule of Law in Wisconsin following an obviously partisan political ruling by Dane County Circuit Court Judge Richard Niess?

On Thursday, he willfully ignored the Wisconsin Constitution, Wisconsin statutes, relevant case law, and even the facts of the case before him in order to issue a temporary injunction against laws passed and political appointees confirmed by the Wisconsin Legislature in extraordinary session in December.

Acting on this ruling, Governor Tony Evers almost immediately pulled Wisconsin out of a multistate lawsuit challenging the Affordable Care Act and rescinded 82 appointments made by his predecessor.

What will happen to those positions when Niess’ ruling is invariably overturned? Does this ruling open for new challenges hundreds of laws passed in extraordinary session over the years?

Extraordinary sessions are so routine in Wisconsin that a challenge to their existence has never before been even considered. Why, then, did Niess invalidate this one? The only logical conclusion one can possibly come to is that he wanted to; either because of personal or political animus toward the legislative Republicans who held that extraordinary session or a personal or political desire to give a Democratic governor a small window to try to undo it.

How else could one explain Niess choosing to ignore the one relevant fact at issue in the case?

Under Wisconsin Statute 13.02, “the legislature may meet annually” and “early in each biennial session period” the “joint committee on legislative organization” must “meet and develop the work schedule for the legislative session…to be submitted to the legislature as a joint resolution.”

In his ruling, Niess never once mentioned the joint resolution passed at the beginning of the 2017-2019 biennium. Why not? It provided that the legislative session would last from “Tuesday, January 3, 2017…to Monday, January 7, 2019” and that “every day of the biennial session period is designated as a day for committee activity and is available to extend a scheduled floor period, convene an extraordinary session, or take senate action on appointments.”

In other words, Wisconsin law allows the Legislature itself to set its schedule through joint resolution.  That joint resolution comported with the law and clearly allowed for an extraordinary session on any day that fell between January 3, 2017 and January 7, 2019. Since December of 2018 fell between those two dates, the extraordinary session was lawful.

This fact is dispositive, which means in the law that it settles the dispute at issue–or, at least, it would have if Niess based his ruling on the law, the facts, or anything other than an obvious personal political preference.

Ironically, that ruling puts at risk every law passed in extraordinary session in Wisconsin’s history, including the one authorizing public funding for the Fiserv Forum, the home of the 2020 Democratic National Convention.  Would Niess issue an injunction barring any further state funding from paying off any remaining construction debt? Or is that extraordinary session acceptable because he liked the legislation that came out of it?

Such is the deep problem of bias in the justice system; they lead to outcomes based not on law or logic, but on a hodgepodge of personal beliefs.

This is especially worrisome on Wisconsin’s appellate courts, where those beliefs run the risk of being institutionalized as binding legal precedent. The Wisconsin Appeals and Supreme Courts, therefore, simply cannot bow to the pressures of personal or political bias.

Anything less than absolute equal application of the law brings Chicago politics north of the border and, as one of Jussie Smollett's relatives might put it, 'Omg, this would be a huge victory' for corruption. Click To Tweet

Troublingly, Lisa Neubauer–the chief judge of the Appeals Court and a candidate for Supreme Court–appears to have let both biases infiltrate her rulings.

In 101 different cases, she heard cases involving current or past clients of her husband’s former janitorial supply business, Kranz, Inc. In 79 of those cases, she joined with the majority in ruling in favor of her husband’s current or former client. In 31 of those cases, Neubauer herself wrote the majority opinion.

It is unclear whether the parties before her were in fact current clients because from 2010 to 2017, when her husband sold Kranz, Neubauer refused to list Kranz’s clients on her annual statements of financial interest.

In other words, she did not want the public knowing about her potential conflicts, which run well beyond business clients. Neubauer is a lifelong Democrat whose husband was a member of the State Assembly and ran the Wisconsin Democratic Party for years. Her daughter now holds his seat in the Assembly and lists herself as a member of Planned Parenthood.

Neubauer’s mother chaired the board of Minnesota’s Planned Parenthood chapter for years and, in 2016, Neubauer voted against the majority in a decision against Planned Parenthood and wrote a lengthy dissent favoring the organization.

A week ago, Planned Parenthood donated $100,000 to her campaign.

The appearance of political payback is magnified by Neubauer’s lifetime in liberal Democratic politics.  The appearance of personal favoritism is magnified by her nearly decade-long refusal to both list her potential conflicts of interest and recuse herself when a conflict arose.

Rather laughably, Neubauer has campaigned on her supposed impartiality and against the influence of politics and political money in judicial races.

“It is anti-democratic,” she said during a recent debate. “It is a disregard for the public and the public’s confidence in our court system.”

Restoring that confidence requires more than empty platitudes; it requires a commitment to the Rule of Law over the rules of political gamesmanship. It requires applying the law equally to every person regardless of their connections and every set of facts regardless of whether the result may be personally distasteful.

Anything less brings Chicago politics north of the border and, as one of Jussie Smollett’s relatives might put it, “Omg, this would be a huge victory” for corruption.