Action resumes this morning in the courtroom of Dane County Circuit Judge Maryann Sumi. The key elements of plaintiff Dane County District Attorney Ismail Ozanne's latest brief reduced to three tweets:
Dane County DA Ozanne concurs, Fitz pulled nothing but a Kinko's job, and he also wants the Kinko's job declared null and void. Ozanne further argues the LRB is bound by the TRO in addition to the SoS on account of the LRB's statutory proximity to the SoS.* And of course Ozanne argues the AG's attempt to moot the case is groundless and absurd (in so many words).This new wrinkle to the case shouldn't be terribly difficult for Judge Sumi to dispose of. It's not even a close question. Think of it this way: If I can figure out in ten minutes what's since been affirmed by everybody from Ed Fallone to the Legislative Reference Bureau, it can't be rocket surgery. I cite Fallone** and the LRB as authorities because: Fallone's area of expertise is constitutional law, and the LRB has the nonpartisan, dispassionate, objective cred as few others do.
The AG's argument is mostly bluster and about the furthest thing you'd expect from a self-advertised judicial conservative. It's bordering on the painful to follow its logic (such as it is) and is incoherent compared to the parsimonious Kinko's Amendment theory.
It's enough to send William of Ockham to rotating violently in his crypt, which is inadvisable because there are sharp objects in there.
It truly is astonishing that Fitz Van Walker would go to these lengths and is perhaps the best indicator yet that Walker and Fitzgerald are terrified to run this bill past another vote in the legislature.
The bill likely wouldn't succeed this time around because they've since pissed off nearly everybody in the State, placed their own colleagues in serious danger of recall, and perhaps most importantly, imperiled their conservative majority on the Supreme Court. They're on the verge of nullifying the 2008 election of Michael Gableman — which alone justifies a vote for Kloppenburg — the one that cost Wisconsin Manufacturers & Commerce one king hell hockey sock full of dough.
And now warding off the FitzWalker taint from the incumbent conservative Justice David Prosser is going to cost WMC & Friends the other sock. But FitzWalker keeps pushing. It's pure madness.
As for the merits, two crucial points: 1) The Department of Justice admitted as much as three minutes less than two hours notice was given in advance of the Fitzgeralds' twilight ramble and 2) The DoJ conceded that the constitutional and statutory requirements of the Wisconsin Open Meetings Law override the legislature's immunity from judicial branch scrutiny of its internal procedural minutiae:
* This is an especially compelling argument because it puts to keen use a slightly modified version of AG Van Hollen's claim that the LRB's and the Secretary of State's "publications" are identical. If it is the case they are identical, then the LRB is likewise bound by Judge Sumi's restraining order. Slightly modified in the sense that although Van Hollen's claim is false, if Van Hollen wishes to assert its truth, then he must by the same reasoning concede that the TRO enjoins the LRB, which AG JBVH must deny. But JBVH can't have it both ways.
Nevertheless, Ozanne can demonstrate that the LRB was subject to the TRO without availing himself of any of Van Hollen's assertions.
** I also cite Fallone because Fallone said: "I do not see my analysis as differing in any significant way from the analysis previously set forth in this blog," meaning this blog, the one you're reading now.
No love for an old alumnus at the MULS webpage though! Harrumph.