April 1, 2011

Right-wing condescension in Wisconsin, Day Two

CAPITOL KAOS, Agent Rick reporting for Faux News duty

I finally had a chance to listen to Joy Cardin's March 30 interview with Marquette professors of law Ed Fallone and Rick Esenberg, discussing the events unfolding in Judge Maryann Sumi's courtroom in Madison. The link is here, and it's about 35 minutes. Prof. Fallone has got it together, and you'll hear little more from him than you've already read on this here blog over the past week, starting last Friday.

Esenberg, on the other hand, is priceless, so desperately does he want it to be 1943, when the Wisconsin Supreme Court ruled that a dicey procedure* in a political branch might not be enjoined.

But much has changed since then, most importantly the enactment of the Open Meetings Law, which set in place a number of directives to the courts that make Prof. Esenberg's 1943 case considerably less significant than he makes it out to be. But Prof. Esenberg is having none of it, and literally sneers at anyone who thinks differently.

But first, Esenberg has apparently forgotten about the chicanery perpetrated by the Republican Senate leader Scott Fitzgerald, who Esenberg helped advise that a six-months-pregnant woman might be "carried ... feet first" over that legislative chamber's threshold:
The mess that we find ourselves in now is because, I believe, that the circuit court failed to give adequate attention to whether or not this was a morass into which she should have plunged in the first place.
It's laugh-out-loud stuff, and the gist of Esenberg's complaint is that Judge Sumi hasn't explained to Esenberg every step of her reasoning up to this point: Rick is "extremely disappointed" that Judge Sumi hasn't acknowledged Rick's concerns, which is absolute nonsense because the one case upon which Rick hangs his hat is referenced throughout documents filed with the court, including, significantly, the District IV Court of Appeals certification of Ozanne v. Fitz to the Supreme Court. Rick suggests Sumi is simply ignoring it. Poor guy.

And unfortunately for Prof. Rick, it isn't the only case.

Another thing that bothers Rick is that Dane County District Attorney Ismail Ozanne didn't sue the Legislative Reference Bureau along with the secretary of state. But if your objective is to enjoin publication, which is a legal term of art and is what is required by the constitution and the statutory framework, then why would you sue the Kinko's kiosk?** This concern catapults Prof. Esenberg into full sneer-mode:
The one thing I think should have happened here is that a lawyer who read the law, and I'm talking about the statutes and, y'know, not a publication that is sent to schoolchildren to explain to gradeschoolers how, y'know, a law goes into effect, but actually read the law ...
And if you think "sneering" is an exaggeration, go to 32:45 of the interview. Evidently invoking "schoolchildren" is a rhetorical specialty of Rick's, because he pulled the same stunt on me when I pointed out that Michael Gableman's ethics case was still pending after the Supreme Court delivered its opinions — or "writings," as they have become known — in the matter. Rick told me I needed to consult something other than "horn book" civil procedure, which is like accusing someone of only having read the CliffsNotes version of The Brothers Karamazov or, as Rick would put it: "[G]o read Sartre."

But then, lo and behold, Wisconsin Supreme Court Justice N. Patrick Crooks, who has been a trial judge and an appellate judge for 30-plus years, appeared before a special committee of the legislature to point out that, yes, the complaint against Gableman is still pending because — just as this space had explained earlier — Gableman failed to win his motion for summary judgment, which is the question an appeals court panel had convened to hear in September of 2009.

So, yes, I had certainly consulted something other than a horn book: I consulted something called the law prior to making the claim, as did Justice Crooks prior to affirming it, as has, obviously, Judge Maryann Sumi. She's not conducting this hearing — and they call them hearings for a reason — for the special benefit of Marquette's Rick Esenberg.

Rick has a right to his argument — which is wrong, as it turns out — but he has no cause to sneer and especially no business sneering at a presiding trial judge simply because she hasn't acknowledged Prof. Rick's existence. The hubris, as they say, is strong with this one.

But the truly depressing thing is, the local nut-right simply accepts Prof. Esenberg's words as Gospel, and his sentiment find its way into the appalling personal attacks against Judge Sumi among the basest dregs of the Milwaukee Journal-Sentinel's comments threads.

Meanwhile what Judge Maryann Sumi is doing is an exemplary job and she's clearly — crystal clearly — been doing her homework.

* There is procedure and there is substance, a fundamental distinction in all law, and a very important distinction in this case. It's why the Justices of the SCOTUS were moved to devise the intuitively redundant expression, "procedural due process."

** No disrespect to the LRB, but it's the best metaphor I can think of to describe a core question of the case. Amusingly, Esenberg accuses the LRB of injecting politics into the proceeding when in fact the LRB is the least political party, named or unnamed, to the proceeding.


gnarlytrombone said...

To be fair, code-switching English and argle-bargle Sykes AM patois is tricky.

Greg said...

I have a concern/question regards to one one of Esenbergs (sp?) argument. He said the Calving case indicates that if Koppenburg gets in before the vote on the union case. Because of the outside money that was used help her campaign. If this is the case shouldn't the same argument hold true with Prosser whither or not he whens or loses. WMC is putting up 4 million in money for "issue" ads. WMC isn't doing this for reason.

illusory tenant said...

Greg, I simply haven't had time to pay close enough attention to the Supreme Court race lately but I will get a chance over the weekend.

[Redacted] said...

Am I wrong to strongly suspect that His Sharkiness is trying to write himself a national commentating ticket? He just got published on NRO, John Fund from the WSJ is singing his praises, and his legal commentary is a lot less defensible than usual. His writing is getting more sneering (perfect word for it, iT) and partisan with each passing day, and the only way that makes sense to me is if he either wants to run for office (I really don't think he does) or launch a career as a legal pundit for NRO or some other conservative publication. Personally, I think that's beneath him, although it probably does pay better than being a law professor.

I little less grandstanding from Rick would be nice, but I'm not holding my breath.

illusory tenant said...

His writing is getting more sneering and partisan with each passing day ...

Yes it is.

Jim Bouman said...

Careful, there, posters and common taters. Do you really want to harpoon a guy who sports a halo?

Rick Esenberg said...

To be clear, what I said is not that she should tell me why the rule in Goodland is inapplicable but the people of Wisconsin and the higher courts. That is, after all, the generally accepted practice.

There is no rule that an old case cannot be good law. Brown is an is an old case. Wickburn is an old case. There have been no cases which call Goodland into question and there are good reasons - like the language of the constitution - to regard publication as part of the legislative process. I am aware of the argument based on the open meetings law but it's a pretty weak argument for reasons that I have set forth elsewhere.

Jim Bouman said...

Professor Esenberg calls the Open Meetings Law arguments WEAK.

Try this for weak:

Wis. Stat. § 19.81-19.98

(1) In recognition of the fact that a representative government of the American type is dependent upon an informed electorate, it is declared to be the policy of this state that the public is entitled to the fullest and most complete information regarding the affairs of government as is compatible with the conduct of governmental business.

(2) To implement and ensure the public policy herein expressed, all meetings of all state and local governmental bodies shall be publicly held in places reasonably accessible to members of the public and shall be open to all citizens at all times unless otherwise expressly provided by law.

(3) In conformance with article IV, section 10, of the constitution, which states that the doors of each house shall remain open, except when the public welfare requires secrecy, it is declared to be the intent of the legislature to comply to the fullest extent with this subchapter.

(4) This subchapter shall be liberally construed to achieve the purposes set forth in this section, and the rule that penal statutes must be strictly construed shall be limited to the enforcement of forfeitures and shall not otherwise apply to actions brought under this subchapter or to interpretations thereof.

illusory tenant said...

Parsimony is never weak.

Other Side said...

McIlheran has referred to the good professor as being "incomparable." Of course, there is more than one way to read the meaning behind that word.

illusory tenant said...

McIlheran doesn't know whether he's punched, bored, or f*cked.

gnarlytrombone said...

"This subchapter shall be liberally construed"


illusory tenant said...

Makes it mighty difficult for them to demand their normal absolute highest degree of deference from the courts toward the legislature, don't it. That's one reason why this case is short-circuiting the wing-synapses.