I'm frankly surprised to hear the attorney general's office indicate that they considered the previous [temporary restraining] order to be in effect since, as near as I can tell from having read the newspaper, the Department of Administration and the Senate president seem to be proceeding under the assumption that they are not restrained, that there is no order enjoining the further implementation of this Act. So I don't know what it takes for the court to communicate to the attorney general's office in a way that is sufficiently effective to alert them to the fact that there is to be no further implementation of this legislation until this court has ruled on whether or not a permanent injunction is to issue. I had thought the court had ruled last time [March 18] that there was to be no further implementation. I had thought the court had ordered last time and made it very clear that the secretary of state was not permitted to issue a date of publication. The secretary of state acted in furtherance of the court's order and everybody else who was apparently, I presume, taking advice from the attorney general was acting in violation of the order.
— Robert Jambois, atty. for Assembly Minority Leader Peter Barca
The hearing continues Friday* and it is not going well for JBVH & Co.
Mostly because their case is threadbare and they're reduced to simply objecting to all evidence save the courtroom's wallpaper and drapes.
And frequently demanding recesses and adjournments, each of which was denied. Whether those demands are designed to forestall the inevitable or buy the Walker administration more time to unlawfully enforce its allegedly non-fiscal budget "repair" bill, who knows.
The most oft-repeated word they heard today was "overruled." JBVH attempted to rescind his motion to the court of appeals after it was already certified to the Supreme Court and his agent in circuit court, assistant AG Lazar, flagrantly contradicted the legal arguments set out in JBVH's paper filings (again). "Train wreck" springs to mind.
I don't hold it against AAG Lazar, however, as she appears to be doing the best she can with what she's got, and that ain't much.
The court has yet to declare or reach the question of whether "2011 Wisconsin Act 10 has not been published, within the meaning of the Wis. Stat. §§ 991.11, 35.095(1)(b),** and 35.095(3)(b)." But it will.
* April Fools Day, the third anniversary of Mike Gableman's election.
** 35.095(1)(b) defines: "'Date of publication' means the date designated by the secretary of state under sub. 3." These are precisely the statutory provisions discussed at this blog below. In other words, the court will frame its disposition to the question of whether the Act has taken effect just as did the approach here.
Prophecy, is what Oliver Wendell Holmes, Jr. called the law.
Obviously your humble correspondent concurs.
eta — From the Milwaukee Journal-Sentinel:
Marquette University law professor Richard Esenberg said he was not surprised by the ruling but criticized the judge.That is so emblematic of the depressingly predictable right-wing response pretty much in its entirety, with their standard ad hominem fallacies. What constructive purpose they serve, I have no idea. Prof. Esenberg likes his WWII-vintage case, but a number of things have changed since then, like, the enactment of the Open Meetings Law, which enshrines several guarantees to the public tied directly to the State constitution, which trumps any dusty old case (esp. pre-1901).
Having followed the bulk of the hearings so far, it's clear Dane County Judge Maryann Sumi is aware of Esenberg's concerns, has relegated them to their proper place of relative insignificance, and is admirably conducting a complicated proceeding while owing no duty to communicate to the right-wing professor of law her every rationale.
Speaking of duties, does not the Journal-Sentinel have a duty to disclose the fact that Esenberg has lately been acting as counsel to Republican Senate leader Scott Fitzgerald? Prof. Esenberg was among the Republicans-for-hire attorneys who filed suit on behalf of the Oconto County GOP chairman, a suit they had to know was frivolous, seeking an ancillary statement from the judge which they did not receive but claimed they did in a memo to Fitzgerald, which memo Fitzgerald used to bolster his ridiculous ersatz "arrest warrants" issued against 14 of his Senate colleagues (all Democrats, naturally).
The legal memo advised Big Fitz he could direct law enforcement officers to have a six-months-pregnant woman*** seized into physical custody and "carried ... feet first" across the Senate threshold.****
Fitzgerald in turn acted on the basis of that advice.
More recently Esenberg deposited a risible piece of propaganda at NROnline shilling for the conservative Justice David Prosser, which begins by misattributing to Jean-Paul Sartre a sentiment delivered by a character in one of the philosopher's anti-Communist plays.
By Esenberg's reasoning Shakespeare was a bloodthirsty murderer of Scottish lairds and Sam Shepard an intellectually challenged hillbilly.
Prosser, alleges Esenberg, is a "moderate conservative" because he once in awhile does not join a hard-right three-justice bloc and who "received overwhelming public support in his election to his current term" without mentioning that Prosser was the only candidate on the ballot. Yet if you read the Journal-Sentinel, you'd think Esenberg was some detached academic, which is far, far from the actual reality.
*** Who had done nothing whatsoever unlawful.
**** Face down or face up was left to Big Fitz's wise discretion.