July 4, 2010

Wisconsin professor professes puzzling professions

These claims appear in the Wisconsin Law Journal:
Marquette University Law School Professor Rick Esenberg suggested that the case should be over and that a jury trial before a panel would produce the same result because no member [of the Wisconsin Supreme Court] believes there are facts to be tried.
This is simply not true.
There are facts bearing on this case that were not included in the Panel's findings. For example, at oral argument Justice Gableman's counsel urged the court to consider the relevance of case citations that were visually included in the disputed advertisement. The Panel offered no findings or discussion regarding the case citations or the visual aspect of the advertisement.
The above is from paragraph 19 of three justices' written opinion. They continue to discuss those specific facts in paragraph 26 and then again in considerable detail in paragraphs 49 through 54.

So why is a law school professor instructing us that no member of the court believes there are facts to be tried when in reality three members of the court do indeed believe there are facts to be tried?

In the Wisconsin Law Journal, of all places.

It's also puzzling as to how one goes about declaring an action "over" where the movant, Gableman, has failed to meet his burden of convincing a court to grant his motion for summary judgment.

Nobody should lose sight of the fact that the Panel was convened in Waukesha September 16, 2009 on Gableman's motion of May 11. All Gableman has at this point are "recommendations," not a judgment.

And even Gableman's three First Amendment defenders on the Supreme Court concede that those recommendations are entitled to only "some deference," which is to say, a negligible amount.

As a matter of both law and fact the court may discount them altogether. The aforementioned three defenders make it clear that the Supreme Court's review of the case is independent of the Panel's.

According to the Wisconsin rules of civil procedure, which the State statutes (specifically, § 757.91) dictate govern the Supreme Court's review process in judicial disciplinary actions, where a motion for summary judgment is unsuccessful, the matter proceeds to trial.

Amusingly, Professor Esenberg entitles his own separate discussion of the Supreme Court's impasse "Gableman Agonistes," which means: Gableman the Struggler. To the extent Gableman's struggle (or Kampf, in a different foreign language and jihad in yet another) involves securing First Amendment protection for one State judge's ability to subtly defame a higher ranking State judge with the transparently political object of toppling the latter, it's difficult to see that struggle as an admirable — or even a useful — one.

Who else would engage in such deliberate and deliberative chicanery?


Rick Esenberg said...

You might want to quote what I actually said rather than the author's paraphrase of it. It was in the very next paragraph:

“A jury verdict, either for or against Justice Gableman, would not and actually, given the reasoning expressed in their writings, should not, change anyone’s mind since no one really thinks it’s necessary to resolve the case.”

The reason this is so, as I explain here, is that neither group thinks that there are any unresolved issues of material fact. Both were quite able to resolve the merits based upon the undisputed facts and, if you read and consider what they said, there is no way that anything a jury might do would - or should - change their minds. The reason that the case should be over is that the impasse can't be broken and the Judicial Commission has the burden of proof.

illusory tenant said...

"You might want to quote what I actually said ... '[N]o one really thinks it's necessary to resolve the case.'"

Is that so.

¶18 The recommendation of the Panel has failed. Where the summary judgment has failed and the statutes do not provide an answer for proceeding other than by jury trial, Wis. Stat. § 757.87(1),(2), it remains necessary to resolve the matter in accordance with the governing statute to the extent possible. When this court cannot reach a decision because of a deadlock, it is incumbent on this court to ensure that a tribunal decide this matter.

Emphases added.

Don't worry, I read your quote. It's unavailing.