Lolbertarian of the week

[Faux News lolbertarian John] Stossel suggests nixing FDA: If supermarket carries "cantaloupes...more likely to contain listeria" w/ "free market word about that gets out" — Media Matters

Marquette professor of law "closes the loop"

Well, not quite. Closing the loop might take a court of law.

I said I thought the Milwaukee County district attorney must charge Wisconsin Right to Life with a violation of the State election bribery statute, but law professor Rick Esenberg says the district attorney can't.

Let's take a look at the statute one more time:

Any person who offers, gives, lends or promises to give or lend, or endeavors to procure, anything of value, or any office or employment or any privilege or immunity to, or for, any elector, or to or for any other person, in order to induce any elector to [vote] violates this chapter.

As I suggested, this statute, Wis. Stat. § 12.11(1m), contemplates three parties: "Any person" (WRTL), "any other person" (WRTL volunteer), and "any elector" (absentee ballot filler-outer — "elector" is an elsewhere-defined term of art in Wisconsin law: it means "registered voter," and you must be a registered voter to complete the absentee ballot form).

And the "any other person" needn't be an elector.

Prof. Esenberg says my interpretation yields an absurd result, and he's correct that judicial doctrine counsels against interpreting statutes such that they yield absurd results. But it's Prof. Rick's interpretation that is prima facie absurd, according to the plain language of the statute.

In a nutshell, this particular law does not say what he wants it to say.

This is what he wants it to say:

Any person who offers anything of value [to any elector] in order to induce any elector to [vote] violates this chapter.

Except that isn't what it says at all.

The statute is larded with disjunctions and indeed lends itself to nearly a dozen separate prohibitions* depending upon which elements — e.g., "office or employment or privilege or immunity" — one might isolate.

This is only one of several equally valid** readings:

Any person who offers anything of value to any elector in order to induce any elector to [vote] violates this chapter.

This, Prof. Esenberg insists, is the substantive extent of the statute's reach, that it's limited to prohibiting that activity. And I suppose one might interpret that reading with the understanding that both "any electors" are one and the same individual. I would beg to differ.

However the statute also says this:

Any person who offers anything of value to any other person in order to induce any elector to [vote] violates this chapter.

That's what it says. I can't help it. It invokes three distinct parties.

As a matter of fact there is no way to read the statute as prohibiting only any person offering things of value directly to the elector herself, except by completely ignoring the statute's "any other person" language.

And according to press reports, WRTL offered things of value to other persons in order to induce electors to vote. Nevertheless, Prof. Esenberg insists that in order to violate the statute, WRTL would have to have offered the thing of value directly to the elector, or at least that the recipient or potential recipient of the inducement must be "any elector."

I might agree that that may have been the drafters' intention. And I understand perfectly what Rick is saying. He's saying that the statute is directed at the any person either offering the thing of value directly to the elector or the any person giving the thing of value to the any other person in order for the other person to offer it directly to the elector.

But that doesn't make much sense either. Indeed it makes worse sense, because under that reading, only the any person who offered the thing of value to the any other person in order to offer it to the elector violates the statute. By that reading the any other person who actually offered the thing of value directly to the elector would be wholly exempt from prosecution. Now that is absurd, and betrays the statute entirely.

If one accepts that interpretation, then both the any person and the any other person should be implicated in the bribery, no? Yet the statute expressly does not contemplate penalizing the any other person — the middleperson, if you will — who directly offered the bribe to the elector.

Sez Rick of the outcome of my judicially conservative plain reading:

The results are absurd and would, I think, render the statute unconstitutional.

All the more reason the DA "must" charge WRTL. Not because I have anything against the "good people" at WRTL, but because I want to see the case in court. Rick is correct that the courts are self-directed to read the statutes in such a way as to preserve their constitutionality.

I just want to see how they're going to get out of this one. Because it seems to me the only way a court could get out of this one is to rewrite the statute. And that's a big No-No for conservatives, or so they tell us.

What the professor has already done is rewrite the statute.*** And I would be just as happy to see a court affirm his interpretation. As a matter of fact seeing a court — especially the Supreme Court — affirm his would be even more entertaining than seeing a court affirm mine.

(This, by the way, is a telling admission on Prof. Esenberg's part, which he cleverly saves for the penultimate statement of his otherwise patently unequivocal discourse: "What the statute seems to be aimed at is bribing electors." Emphasis mine. Catch that? See, he secretly agrees with me.)

* Possibly more; I haven't counted them all up, for want of a calculator.

** Prof. Esenberg instructs us all that each reading is not equally valid. And that's where he goes "extra textual," into doctrines of statutory construction. He describes those doctrines well but their application is invoked only where textual ambiguity inheres in the statute. "Any person who offers anything of value to any other person in order to induce any elector to [vote] violates this chapter" is neither ambiguous nor vague.

IMHO, as the kids say.

*** Which at least is not as bad as rewriting the Wisconsin constitution.

Nota bene to Sh. 'n' Sh. commenter Geo. Mitchell — Any system of logic that employs false or irrelevant premises is useless, as sound as the conclusory derivations from those false or irrelevant premises may be.

Scott Walker would regulate his own recall

Two fine accounts of Tuesday's disturbing committee hearing, which was chaired by State Senator Leah Vukmir, who is known primarily at this space for having declared former and current Justices of the United States Supreme Court David Souter and Sonia Sotomayor "dim bulbs."

Version the longer, by Rebecca Kemble

Version the shorter, by Steve Hanson

♫ Let the Eeeagle Scout soar . . . ♪

Wisconsin Supreme Court quote of the day

Justice Prosser reflects on the standards for judicial disqualification:

The truth of the matter is there are sometimes situations where one of the parties is working through, say, the news media to create a furor that doesn't exist. And really, the public doesn't know that the whole thing is being orchestrated by one of the parties to get rid of a judge. Now this has happened to me more than once now. And I don't think the whole story has been told.

WisEye video at 46:46

The truth of the matter is also that Justice Prosser retained James Troupis in April to represent Prosser in his bid to remain on the court during the contentious Statewide recounts of votes for and against Prosser. At the time Troupis was also lead counsel for the plaintiffs in a highly charged political speech case, several of whose motions Prosser had participated in granting and indeed had authored an opinion in August, 2010, granting Troupis's request for a preliminary injunction against the defendants, the Wisconsin Government Accountability Board.

Eventually the Milwaukee Journal-Sentinel printed the views of three academic experts in legal ethics, each of whom was troubled by the appearance of impropriety, that a judge who was helping move a plaintiff's case through his court had hired that plaintiff's counsel to ensure that judge was back on the court to hear that plaintiff's case.

Presumably this was one of the situations to which Justice Prosser is referring. If so, he is at least partly responsible for the "furor," no?

Less clear is which party he's accusing of orchestrating the press.

Glenn Grothman issues jeremiad on Koch stationery

Lena Taylor declared war on Georgia-Pacific by encouraging a boycott of their products. . . . There are some narrow-minded and mean-spirited members of Wisconsin's Totalitarian Left that will do all they can to destroy those who disagree with them.

— Wisconsin State Senator Glenn Grothman

It would be interesting to know whether Georgia-Pacific — a wholly owned subsidiary of Koch Industries — manufactures the communications paper which the legislature purchases and conducts its business upon.

Or, obviously, whether its TP is GP.

Extra textual, read all about it

I thought Marquette University adjunct professor of law Rick Esenberg said he was trying to cut down on engaging "lefty bloggers," but has decided to attempt describing his belief that I am "wrong" — I clearly allowed that I might be — with respect to Wisconsin Right to Life's apparent engagement with the State election bribery statute:

The problem that I see with application of the statute to WRTL is that the gift cards were offered or given not as an inducement to vote but as an inducement for people to get others to apply for absentee ballots.

Oddly enough, that's exactly the problem I saw and where there's a problem then one or the other of an adversarial party can be expected to employ it to their best advantage. Less oddly, for this is a favorite rhetorical device of his, he blandly asserts I'm "wrong" and then goes on to acknowledge that the bribery statute is indeed open to ambiguous interpretation, an admission that defeats his immediately prior assertion that I am "wrong." Most unfortunately, Prof. Esenberg does not explain why, in this case, the voucher must be offered directly to the elector:

[T]he inducement — whether given directly to an elector or another person — must function as an inducement to the elector.

That's the assertion of Prof. Esenberg. And of course I get that that may be the intent of the statute, but that is not what the statute says.

So one more time, "slowly," as the professor would say.

The statute, reduced to one alternative essence, proscribes:

Any person who offers anything of value to any other person in order to induce any elector to [vote].

For example:

WRTL who offered $75 vouchers to volunteers in order to induce electors to vote [absentee].

Pretty good fit, if you ask me. Bottom line: The plain (such as it is) language does not make the distinction Prof. Esenberg and his friends at WRTL want it to include and in order to ascribe that distinction to the statute, Prof. Esenberg has gone elsewhere, extra-textual. He has to.

Just beware the next time he accuses a "liberal" of doing so.

By the way I don't care much what the cases say. That's because I'm a proud judicial conservative in the finest Thomas/Scalia tradition.* The cases may be wrong. Any conservative can tell you that. But the language of the statutes, as sloppy and unintentionally sweeping of otherwise unobjectionable behavior as it may be, can never be "wrong."

Besides, it's merely my opinion that the DA "must" charge WRTL, not to punish them but to seek clarification in the law, which WRTL itself appears to be challenging, although there is punishment available.

Most people — including even law professors — understand that the widest latitude in prosecutorial discretion inheres at sentencing, where prosecutors may insist on bare minimums, defendants will obviously embrace such recommendations, and 99 times out of 100 judges will bless the lawyers' covenant. So this has nothing to do with penology.**

And I accept, arguendo, Esenberg's declaration that WRTL is comprised of "good people." But that's got nothing to do with it either. WRTL is a political advocacy outfit with plenty of dough and plenty of high-priced legal assistance at hand. If they want to play and especially if they want to push the envelope then they have to be aware of the consequences.

* Admittedly occasionally tongue-in-cheekedly.

** And plenty to do with politics: "lefty blogger" here, don't you know.

J.B. Van Hollen's record of extreme partisanship

And dereliction of duty:

The AG ignored the constitution, the statutes and a judge's order and simply issued a press release declaring: "Act 10 is now law."

That he did, and nobody agreed — except for unnamed highly partisan State Supreme Court justices — because J.B. Van Hollen's untethered pronunciamento would have nullified decades worth of Wisconsin law.

Tea Party Video: J.B. Van Hollen in "Fight, kill, fight."

Overheard on MSNBC

Apparently the gang on Morning Joe was pretty excited about some doofus from New Jersey reading off a piece of paper last night, praising Ronald Reagan and insulting the current president:

Cramer: They love him! They love him!
Morning Joe: Who does that remind you of?
Mika: Scott Walker!

Your librul media.

Among the Eagle Scout's merit badges

The second highest ethics fine in Wisconsin history.

Walker offers firmest defense of ethical standards

He was an Eagle Scout.

Couple of questions spring immediately to mind:

If Walker doesn't know anything about the secret investigation, then how does he know his campaign treasurer's leaving had nothing to do with it? And how would Walker's spokesman Cullen Werwie be violating the law by telling Walker about something that's in the public record?

Obama rolls the bones

President Obama's decision not to seek review by the full appeals court will likely speed up consideration of the matter by the high court in its 2011-12 term that begins next week. A ruling could come by late June, in the middle of the presidential campaign.

He's a gambling man, that's for certain.

Why the DA must charge Wisconsin Right to Life

In August, the Journal-Sentinel reported that Wisconsin Right to Life (WRTL), the personal privacy skeptics, "offered gift cards ranging from $25 to $75 to volunteers who hit [quotas] for persuading voters to fill out absentee ballot applications in the July recall primary elections."

Last Sunday, the Journal-Sentinel's Daniel Bice confirmed that an investigation into the practice was sustained, and that the Milwaukee County District Attorney's office was handing out subpoenas "like candy." Election bribery is a felony, which means it carries a prison sentence.

This is Wis. Stat. § 12.11(1m), emphases supplied:

Any person who does any of the following violates this chapter:
Offers, gives, lends or promises to give or lend, or endeavors to procure, anything of value, or any office or employment or any privilege or immunity to, or for, any elector, or to or for any other person, in order to induce any elector to:

1. Go to or refrain from going to the polls.

2. Vote or refrain from voting.

3. Vote or refrain from voting for or against a particular person.

"Any of the following" means that giving and offering and promising to give are equally as prohibited by the statute. An offer or promise to give are each sufficient to constitute a violation, short of actually giving or lending. "Anything of value" means — other than cash — "any object which has utility independent of any political message it contains and the value of which exceeds $1." The vouchers satisfy both these criteria.

As I read it, the statute contemplates connections among three separate individuals: (A) the "any person" whose proven offer or promise to give exposes them to a Class I felony, (B) the "any other person" before whose snout the offered or promised inducement tool is dangled, and (C) the "any elector" whose "going to the polls" (or not going to the polls) or "voting" (or not voting) is ultimately sought.* In this case, (A) would be Wisconsin Right to Life, (B) would be the Wisconsin Right to Life volunteers, and (C) would be the absentee ballot application signatories.

WRTL and its counsel James "Constitutional Right to Lie" (CRTL) Bopp would likely claim that submitting absentee ballot applications is neither "going to the polls" nor "voting." And that may be. But their legal problem will be with the inducement element of the statute. Because if one is inducing electors to submit absentee ballot applications, even by an "any other person" proxy, one may not be inducing electors to "go to the polls" — because absentee ballots are by definition proxies for going to the polls — but one is arguably inducing registered electors to vote.

One might attack the claim that merely submitting the absentee ballot application marks the end of the inducement. Of course the inducers — who are both the "any person" and the "any other person" in the election bribery statute — desire a completion of the inducement process: voting. And inducement may most certainly be a process. Its meaning in law is not limited to the performance or completion of discrete acts.

Absentee voting is voting. Requesting absentee ballots is not voting. So the question reduces to whether the statute allows for a thing of value to be offered to anyone to induce any behavior by a registered voter up to the point of that voter actually casting a ballot. Here it seems there is an inducement to vote. Otherwise what good is a completed absentee ballot application? The statute is not so clear, as applied to these facts.

Under different circumstances the Milwaukee County District Attorney might solicit an advisory opinion from the Attorney General as to what activities fit within the outer boundaries of the statute. But we already know what this particular Attorney General's opinion would be. Most of us could give it to him without even asking for it. Which is why the DA needs to formally charge WRTL. Even if the DA's theory is mistaken, a clarification is required for the future, and only a court can provide it.

* You must be an "elector" to complete the absentee ballot application.

It's not okay if you're not a Republican

County Board violated open meetings law, judge rules

Well whaddya know, Wisconsin election bribery

Good news: GAB not investigating WRTL. Bad news: DA is.

It is clear the Milwaukee County district attorney's office is investigating charges that Wisconsin Right to Life offered rewards for volunteers who signed up sympathetic voters in the recall races. Several people familiar with the investigation said subpoenas were being distributed "like candy." — Daniel Bice

Huh.

These are the election bribery allegations, by the way, that an actual Marquette University professor of law attempted to defend against by quoting the State election bribery statute beginning halfway through it, utterly ignoring the pertinent language proscribing offers and promises.

It's comical, but it's also pretty pathetic.

"Are you trying to get me in trouble?" bellowed James Bopp.

I should bloody well hope so.

Been telling anyone who'd listen that this thing had legs. I think the DA has to charge it and I think it will end up at the State Supreme Court.

But the Speed Queen BBQ ribs case, which Bice also mentions, isn't going anywhere. As attenuated from the grasp of the bribery statute one might argue WRTL's shenanigans were, the BBQ ribs were even more so.

Sad Media Trackers will be sad.

Supra: Why the DA must investigate Wisconsin Right to Life

Tommy! Thompson in exotic and unusual locales

Tommy protesting in Madison last February.


















Tommy heads to Fort Erie for some duty-free smokes.


















Tommy stands guard against the Taliban.

More in comments, many thanks to Lacuna / Mike.

See also: Courting the hoodlum vote.

Tommy Thompson: Courting the hoodlum vote

Soundtrack: Link Wray — Rumble

h/t Scot Ross.

eta: I just noticed this now, but listen closely for the Ennio Morricone bell and the synthesized *whoosh* coinciding with the appearance of Hoodlum Tommy! at 1:20. Truly a marketing genius, whoever did that.

There are two kinds of people in this world

C'Mon 'N Ride It (The Train)

Of Scott Walker spokesman Cullen Werwie, railroad lobbyist Ken Lucht, and local Republican Party functionary Roseann Dieck:

"Normally, the two kinds of people they're going to call for a John Doe investigation are, one, somebody they think is implicated and may testify under immunity, or, two, somebody that they're not really certain is implicated but might have information. It's kind of like, ‘If you didn't do anything wrong, why do you need immunity?' It may not be like that, but it sure looks like that."

— Associated Press

The three were granted immunity in exchange for something.

By the way, where is erstwhile Walker dissembler Jill Bader in all of this?*

* eta: "Safe and sound in Iceland," apparently.

Rick's Kulturkampf Boutique

Move over, Jay $ekulow.

Speaking of Jay $ekulow, there was this, recently.

Having a little trouble keeping the lies straight

"What is going on?" Heidi Green's email asked. "Why would I interview on August 25th if she* got the job on the 18th???"

More great stuff from Patrick Marley.

* "Embattled" Walker political confidante Cynthia Archer.

Journal-Sentinel joins Robin Vos in Gableman recall

So the Milwaukee Journal-Sentinel, which frequently asserts its corporate constitutional rights to press freedom, has come out in favor of abridging the constitutional rights of the citizens of Wisconsin.

The Journal-Sentinel didn't appreciate this summer's recall elections, the right to which is guaranteed by the State constitution, arguing against along two fronts: 1) Elected officials shouldn't be recalled simply over policy disagreements and 2) The recall elections were too costly.

Journal Communications, Inc.'s business side can't possibly endorse the latter jusification. A huge portion of that $44M spent on advertising ended up as JRN revenue and the Journal-Sentinel's online edition's page views were through the roof, satisfying and attracting advertisers. In fact JRN has an affirmative duty to its shareholders to lobby for more and more and more recall elections and their attendant political gossip.

Nevertheless this morning the Journal-Sentinel supports Republican Assemblyman Robin Vos's proposal to amend the constitution, requiring specific grounds upon which to initiate the recall process — "higher standards," it says, as in, the commission of crimes by elected officials or findings by the Government Accountability Board of ethical violations.

Fine, then, let's accept that for the sake of argument. However, the Government Accountability Board is not responsive to ethical complaints against members of the judiciary which, as we have been observing for the last several years, suits the definition of "elected officials" better even than the elected officials in the political branches of government.

Thus there is no more reason to absorb the Government Accountability Board into the proposed rejiggered recall process than there is to absorb the Wisconsin Judicial Commission, the GAB's corollary for the judicial branch. And as we learned, the statutory framework for the processing of complaints against members of the judiciary proved ineffective in 2010, when the WJC's complaint against a justice of the Supreme Court, Mike Gableman, reached the impasse of an evenly divided tribunal.

The statutes direct the Commission to follow the rules of civil procedure to the best extent possible but at the same time the statutes thwart that goal. It doesn't happen in civil procedure that courts divide on motions for summary judgment (dismissal) because motions for such judgment are brought in trial courts, where a single judge presides.

Recall that, procedurally, the three-judge panel in the Gableman action convened on Gableman's motion for summary judgment. While the panel recommended dismissal, its recommendations are toothless, as they are subject to review by the Supreme Court, which retains the discretion to ignore them completely. And then that court, necessarily Gableman-less and reduced to six members, failed to reach a majority disposition.

Wherefore does the Gableman complaint remain pending to this day.

Which, according to both Robin Vos's and the Journal-Sentinel's own reasoning, presents a classic case for the recall of an elected official in strict conformance with their proposed constitutional amendings.

In other words since the system currently in place failed to get the job done, the remaining recourse is for the people to exercise their right to recall and one expects Vos and the Journal-Sentinel to lead the charge.

Earlier: Robin Vos clears the way for Mike Gableman recall

Walker aide Archer removed from fraud commission

Today in damage control.

"This commission is the first step in restoring the people's trust in their government." — Wisconsin Governor Scott Walker, 01.04.11

How's that workin' out for ya.

"Sen. Lasee wanted to talk about where the DOT puts flower beds."

Scott Walker’s spokesman [Cullen Werwie] said the executive order creating the commission called for a DOA representative on the panel and Archer is no longer with that agency.

No it didn't.

The order called for "including the Secretary of the Department of Administration or the Secretary’s designee." It didn't say that the Secretary's designee had to be a DOA representative. More evidence Republicans are not the strict constructionists they claim to be. And whomever the designee, they "serve at the pleasure of the Governor."

Clearly the said service was no longer pleasurable.

Will Governor Scott Walker ever stop lying?

Now he's even lying directly to his own "campaign" supporters.

Have you noticed Republican liars prosper in Wisconsin? I have.

Walker. Rich in Retail. Ellen Nowak. And of course Mike Gableman.

And on and on.

There is a finite amount of currency

Concentrated in fewer and fewer hands:

Adjusted for inflation, median household income in the State declined 14.5% between 1999 and 2010, according to U.S. Census Bureau estimates released Thursday. — Is what it says here.

Actually it's not true there is a finite amount of currency because I hear from conservative Republicans that the Federal Reserve keeps printing it — almost to the point of treason, according to the current GOP favorite — and yet it's still getting concentrated in fewer and fewer hands.

No wonder folks are pissed off at corporate toadies like Scott Walker.

"Walkergate" — Shots Fired

Thing "carried ... feet first" into completely different thing

This could be entertaining.

Popularly cited election law expert Prof. Richard Esenberg knows Chris Liebenthal wasn't "campaigning" and that Chris is criticizing something entirely different than what he was accused of doing,* but Esenberg doesn't quite make those substantive distinctions clear, now does he.

Sort of like quoting a Wisconsin statute starting from the middle of it.

As for speculation and innuendo, how about Esenberg's pal Charlie Sykes and his tasteless musings over what personal information was redacted from Justice Ann Walsh Bradley's statement to Dane County detectives?

Don't hold your breath waiting for that condemnation of pure innuendo.

* Reading an online newspaper at work, essentially — the horror of it all.

Unsolicited PR advice for Cynthia Archer

Archer had been ordered not to discuss the investigation. That means don't discuss the investigation, including your involvement or non-involvement. It also gives you a convenient excuse to shut your pie hole. — Unsolicited Public Relations Advice

A new blog that promises to be pretty entertaining.

Scott Walker was unfit for student government

Courtesy of One Wisconsin Now:

Marquette Tribune, February 24, 1988.

"The Desperado."

Newspaper lead of the day

By far the biggest beneficiary is Cindy Archer, whose house was raided by the FBI last week. — the MJS's Patrick Marley

Everybody else took a pay cut and had their rights stomped down.

"We're broke," as Scott Walker is fond of saying. Morally, perhaps.

Gummint bennies pretty handy for Walker crony

Dept. of IOKIYAR:

Cynthia Archer is currently on paid sick leave, using 344 hours of banked sick leave accumulated in large part from her previous time in State government from 1987-2003 — a perk that is allowed for employees who leave State government, but later return as appointees to "career executive positions."

Not bad, ten weeks off at full pop. And if it was anyone other than a longtime Scott Walker henchperson — for example, a schoolteacher — Charlie Sykes and his raving disciples would be bellowing like hyenas.

Chris Liebenthal has been following developments since day one as closely as anybody except for the DA and the Federal Bureau of Investigation.

Cynthia Archer and another person were up and about when rubber-gloved FBI agents and other law enforcement raided her Madison home on Wednesday morning, confiscating a carton of baubles and even a hard drive from her neighbor, which Archer had sold at a yard sale.

No Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

No persons being seized, it would appear the law enforcement agents who descended on Archer's home knew what they were looking for.

And discovered some.

As for Scott Walker, he claims he knows nothing other than what he reads in the paper about a widening investigation into the activities of aides current and former and political cronies he's known for decades.

So apparently the governor is in for some more surprises too.

Earlier: Sick leave benefits were once less convenient for Walker

More Republican lying in Wisconsin

Strong words:

In their letter, the Republicans state incorrectly that, as mayor, I ordered Madison police to not participate "in any law enforcement actions to remove or control siege protesters within the Capitol." What happened is on that March day, our police department was asked if it would help forcibly remove protesters from the building. Chief Noble Wray refused on the grounds that he saw no credible public safety threat from the protesters.

It's now clear why the Republicans wanted the building cleared. That evening, they forced through a vote on the governor's union busting bill with less than the required legal notice.

And:

Not too long before, in the same building, the governor of our State told who he thought was a major campaign contributor that he and his staff had considered hiring thugs to create possibly violent disruptions to the protests, and he rejected that idea because it might have backfired politically. There was some indication that the suggestion to hire outside agitators had come from a Republican lawmaker.

There should be an investigation so that we can know just how seriously violent disruption of the protests was considered by Governor Walker, his staff and Republican lawmakers.

— Dave Cieslewicz

"That March day," of course, is when the Republicans violated the Wisconsin Open Meetings Law, which the Supreme Court said was cool.

Scott Walker rarely tells the truth

Caught lying again, in a "campaign fundraising letter"

Earlier: The Journal-Sentinel endorsed a liar for governor

That's what her lawyer told her to say

"I feel no need for legal representation."

(This is her lawyer, by the way.)

Unfortunate metaphor timely strangled off

"The focus here again has been drawn into, 'Boy those people must really be at each other's — you know, on each other's case' when we're back in conference. And it's just not the case," Justice Annette Ziegler said. — Milwaukee Journal Sentinel

That was close.

Scott Walker's darkening Wisconsin job numbers

They were supposed to be "brightening," remember?

Then there was July.

And now there is August (7.9%).

Probably the recall elections'* fault, again.

* Which Republicans initiated, by the way.

Steve Walters not struck on back of the head

For repeatedly calling Justice Geske "Janine"

Emphasis on "federal raids" on Scott Walker

"Two previous federal raids on Walker staffers ended with the seizure of work computers." — Scott Walker probe growing

Those were "federal raids" as well?

I thought not, but it sure sounds good!

Deep thinkers finally catching on

"We favor moving to an appointed system." — MJS

Also this, the other day.

As this space observed, in April, 2008:

And the reason I said I'd changed my mind about electing vs. appointing Supreme Court judges is not because I don't think the voters can handle it. It's because the nominee couldn't handle it.

An appointment process can at least ensure that only the most talented are considered to begin with and the general public can continue to participate in whatever "liberal" vs. "conservative" controversy erupts then. But the debate will necessarily be of a higher quality. Anything would be of better quality than the recent unpleasantness.

Surely the general public would appreciate a more heightened debate as opposed to getting taken for and treated as suckers by third-party special interest groups, most of whom do not have the public's own special interests at heart whatsoever.

Did anybody seriously think anything was going to change?

Some people even think it's gotten worse.

Feds execute search warrant at Walker aide's home

This can't be good (for Walker, that is — it's fun for us)

In an email, former deputy DOA secretary Cynthia A. Archer said she was "not involved in any way in the John Doe investigation."

Only an FBI investigation. Whew!

Wonder if the Western District judge who Ron Johnson did vote to confirm approved the federal warrant. Wouldn't that be amusing.

eta: That's all wrong: too much fun.

Your morning facetiousness, courtesy David Ziemer

Jeez Louise.

By the way, the Seventh Circuit decision to which Mr. Ziemer refers, available here, is possibly the narrowest victory for religious accommodationists yet achieved. The panel, consisting of Circuit Judges Frank Easterbrook, Joel Flaum, and Kenneth Ripple,* split 2-1 on the question of whether a Waukesha County school district violated the First Amendment's Establishment of Religion Clause when it held a graduation ceremony inside a church populated to the brim with "indisputably and strongly Christian" sectarian proselytizations — which, unlike David Ziemer's personally offending "socialism" bugaboos, are manifestations of actual, as-legally-defined religion for Establishment Clause purposes.**

Judge Ripple wrote the majority opinion (pp. 1-54) while Judge Flaum authored its dissent (pp. 55-67). Judge Easterbrook joined Judge Ripple's opinion but wrote nothing, which is unfortunate. Because the last time (Chief) Judge Easterbrook weighed in on an Establishment Clause case, he completely missed the point*** and addressed the president's responsibilities pursuant to the National Day of Prayer rather than the Act of Congress that imposed those responsibilities. Thus Judge Easterbrook's attitude toward these types of controversy is suspect.

In other words, the challengers to the school district lost by the luck of the draw. They need to get a hearing before the entire Seventh Circuit.

* All three are Saint Ronald Reagan appointees, incidentally.

** Unless maybe Mr. Ziemer can detect some elements of Paganism.

*** Deliberately, one cannot say. And that's the problem.

Rick Perry's government injections

Four executions in eight days:

In 2000, the then-attorney general of Texas and now-U.S. Senator John Cornyn, admitted that the racial testimony of a psychologist had wrongfully been allowed to prejudice sentencing in seven separate cases. Six of those cases were reheard as a result, but, in a legal oversight, Duane Buck's never was.

Nice.

America: Your latest Obamacare ruling

Goudy-Bachman v. U.S. Dept. of Health and Human Services:

[T]his case concerns the precise parameters of Congress's enumerated authority under the Commerce Clause of the United States Constitution. Specifically, the issue is whether Congress can invoke its Commerce Clause power to compel individuals to buy insurance as a condition of lawful citizenship or residency. The court concludes that it cannot. The power to regulate interstate commerce does not subsume the power to dictate a lifetime financial commitment to health insurance coverage. Without judicially enforceable limits, the constitutional blessing of the minimum coverage provision, codified at 26 U.S.C. § 5000A, would effectively sanction Congress's exercise of police power under the auspices of the Commerce Clause, jeopardizing the integrity of our dual sovereignty structure [a.k.a. federalism].

Kind of like I was just saying.

(Police power is constitutional law-speak for State power.)

A deep strain of Republican madness

Steve Benen:

Taken together, over the last five days, we’ve learned that the way to impress Republican voters, at least the ones who show up for events like these, is to support letting the uninsured die, accusing the Fed of treason for trying to improve the economy, and executing lots of people.

And booing when somebody (the Texan libertarian-of-convenience Ron Paul) tries to tell you that not all Muslims are homicidal terrorists.

There’s a deep strain of madness running through Republican politics in 2011, and it appears to be getting worse. Those wondering why the GOP presidential field appears weak, insipid, and shallow need look no further than the voters they choose to pander to.

More interesting to me is that Michele Bachmann, who claims to be the bona fide Tea Party Republican — and who reportedly has a degree in law — doesn't even understand how federalism, the motivating principle of American government, works. Last night she asserted that it's unconstitutional for a State to impose what's known in the federal Affordable Care Act as the individual insurance mandate. But the whole point of the Constitutional Convention was and is to limit federal power in order to preserve the States' powers to do whatever they need to do.

So of course States may impose such a mandate.

Not only does the Constitution not forbid it, the Framers devised the 10th Amendment, for which Tea Party Republicans otherwise profess their undying fealty, to affirmatively reiterate that motivating principle.

It's nice that the Tea Partyers have reminded us there is a Constitution.

Now if they would actually take the time to read the damn thing, we might be getting somewhere. Here in Wisconsin, the alleged Tea Party Senator Ron Johnson can't read it and nor, for that matter, can these seven Federalist Society attorneys, led by none other than Governor Scott Walker's choice to head up his judicial appointment committee.

Yet few seem even to care about those jarring dissonances.

More broadly speaking — and being the deepest of ironies — the Tea Party Republicans yapping and clapping at these candidate debates are precisely indicative of the irrational mentality that the Framers distrusted to make political decisions, and why the latter limited their political participation to electing only the House of Representatives, itself limited to two-year terms to keep its damages to a minimum.

In that oft-forgotten sense, the Tea Party Republicans have nothing to do with the Constitution at all, being exactly the mob upon which the Framers' jaundiced eyes were fixed. So when the Tea Party Republicans complain about so-called liberal politicians presuming to know what's best for them while at the same time pledging their devotion to an alleged originalist constitutionalism, tell them they cannot have it both ways.

That oughta flip their ersatz tricornes.

Wisconsin Supreme Court on civility and public trust

This Thursday, the Wisconsin Supreme Court will convene in public for a conference devoted to, among other things, Civility and Public Trust and Confidence. The court has been in the news lately because some of its members don't get along too well. Some observers have wondered why.

Here's a clue. This is Mike Gableman, who lied during his political campaign in 2008, and who still has a civil complaint alleging ethics violations pending against him, speaking to a rubber chicken event in Racine County last March. Much of Gableman's harangue is devoted to praising controversial Justice David Prosser, who Gableman claims is "slow to anger" and only gets mad "when there is some unjustness."

Around 7:20, Gableman gets to insulting his fellow justices:

A judge or a justice should not misuse their position, their office, their temporary office of the court, to supplant or replace the law with their personal, political, or social views. I saw that happening in Madison four years ago when I decided way up in Burnett County that it wasn't me who was failing to understand what Shirley Abrahamson, Ann Walsh Bradley, Pat Crooks and Loophole Louie [sic — it's Louis, rhymes with Lewis; as you can see and hear, Gableman is unrepentant of his judicial ethics violations] Butler were doing to the law [laughter]. It was they who were failing in their sacred vow to follow the law as written and not substitute their own political, social, and personal views for what they think the law ought to be. Thank you [applause].

Notice how Gableman says "Thank you" before the applause starts.

This is not Gableman the political campaigner, this is Gableman the justice of the Supreme Court — where he claims to preside "by the grace of God" — although the roles are indistinguishable in Gableman's case.

So there there you have Gableman accusing his colleagues of "failing" in their professional obligations, and yet some people are still wondering why there is personal tension among certain factions within the court.

And ironic accusations they are, considering Gableman's own behavior.

Gableman returns to praising Prosser, who defended Gableman's ethical violations and indeed told the people of Wisconsin to "get over it" during a debate with JoAnne Kloppenburg, who challenged Prosser for his seat on the court and came within half a percentage point of winning it:

Former [Wisconsin] governors Tommy Thompson and Patrick Lucey, two who you probably cannot find with more divergent political views, are the co-chairmen of his campaign.

Which is funny because just a couple of days later:

Lucey "resigned as honorary co-chair of Justice David Prosser's re-election campaign and endorsed his opponent, State Assistant Attorney General JoAnne Kloppenburg. Lucey said in a statement that he has followed Prosser's campaign "with increasing dismay and now alarm," adding that "Prosser has lost that most crucial of characteristics for a Supreme Court Justice — as for any judge — even-handed impartiality." Lucey also cited Prosser's "disturbing distemper and lack of civility that does not bode well for the High Court in the face of demands that are sure to be placed on it in these times of great political and legal volatility."

That's right, Prosser's own campaign chairman abandoned ship.*

More recently Gableman came up with a tale that Justice Ann Walsh Bradley, whose neck Prosser admitted putting his hands around during a disagreement in her office on June 13, 2011, had "struck" him on the back of the head either in 2008 or 2009 (Gableman told Dane County police detectives it was 2008, then changed the year to 2009 after Wisconsin State Journal reporter Dee Hall noticed that there were no meetings of the court on the date Gableman had alleged in 2008).

Following Gableman's testimony to the Dane County police detectives, he apparently forewarned his other "conservative" colleagues on the court that he had so testified. Justices Prosser and Annette Ziegler both told the detectives they had no other knowledge of the alleged incident, despite Gableman's assurances that all seven justices were present. Three other justices have affirmatively denied such an event took place. The remaining justice, Patience Roggensack, has declined to comment.

This space has wondered — as there was a criminal investigation undertaken into the alleged physical altercation between Justices Bradley and Prosser — why there hasn't been a separate investigation into Gableman's allegations. Or whether the Dane County Sheriff's Office would take notice that Mike Gableman may have been misleading them.

Still wondering.

* Somewhat reminiscent of then-Dodge County district attorney and now-Circuit Court Judge Steven G. Bauer's abandoning of Gableman.

Wisconsin: "These people despise each other."

Mordecai Lee, a Democrat who represented Milwaukee and now teaches governmental affairs at the University of Wisconsin-Milwaukee, said the sheer volume of Democratic amendments rejected by the Republican-controlled Assembly is evidence "that these people despise each other." — reports PolitiFactWisc.

While possibly true, it's not exactly the most logically rigorous inference. There are any number of reasons why amendments might be rejected. In fact I seem to recall such empirically unwarranted conclusions being discouraged when I was getting my political science degree at UWM.*

But I never heard of Prof. Lee until I started reading the newspaper.

* Speaking of which.

Ron Johnson's muse, Dick Morris

Dick Morris can't read — Steve Benen

You remember Dick Morris, the erstwhile podiatrist and present Faux News "pundit" who called on Ron Johnson to run for the Senate. Rather, Morris called on "some rich guy from Wisconsin" to run for the Senate, which is pretty much how Ron Johnson has distinguished himself so far.

Coincidentally, Ron Johnson can't read either.

Rep. Paul Ryan's private security force

Is the police:

Wisconsin Congressman Paul Ryan [R-Galt's Gulch] got the last word in on the senior citizen who disrupted him as the man was pulled from the event by baggy-blazered detectives. "I hope he took his blood pressure medication today," cracked Ryan.

Classy.

Completely confirmed: Steve Job not dead

Only journalism is.

Required reading for the 9/11 anniversary

Sayyid Qutb: The Philosopher of Islamic Terror

Here we go again

JoAnne Kloppenburg for District IV Court of Appeals.

eta: In case you're wondering what I meant by here we go again.

Stay tuned for Charlie Sykes to get his miserable Wizard Of Oz jollies.

To Count Chocula, Hair Club For Grothman

An open letter.

Here's the original, which is just as comical, with the added benefit of being sad.

Republican bloodlust vengeance applause lines

Ugh.

The U.S. Constitution clearly authorizes capital punishment — 'no person shall be deprived of life without due process of law' — but it's just as clearly not a deterrent because death penalty States have consistently higher rates of homicide than non-death penalty States.* Capital punishment is, in the popular mind, pure Old Testament vengeance.**

And the Republican applause underscores that. They are not applauding State executions per se, they are applauding the fact that Texas by far leads the league in executions. And they want more state executions.

At least Rick Perry seems to understand the rather profound nature of capital punishment, which is more than can be said of his rabid fans.

Governor Perry's idiocy is manifested elsewhere.

* Like Wisconsin, which ended the practice more than 160 years ago.

** Despite the Republican mob's profession of New Testament ideals.

Fitzwalkerstan politics as usual

State employee fired for telling the truth

Yet Rich in Retail is still gainfully employed? Outrageous.

Intriguing Wisconsin legal theory of the day

"We need to ease our litigation burden in this State." — Scott Walker

Attorney Lester Pines said he was concerned about the DMV policy on not telling voters they could get IDs for free. "Potentially there is a legal problem in that it shows the State is interested as a matter of policy in charging for these [IDs], and that would be a poll tax," Pines said. "The agency's policy is to put revenue above protecting the right to vote."

Leave it to Walker to fire one of the smartest lawyers in Wisconsin.

"[W]hen a citizen votes in a judicial election, he or she exercises a right guaranteed under the First Amendment of the United States Constitution." — Wis. S. Ct. Justice Patience Roggensack

Justice Roggensack's claim cannot be repeated often enough.

(Partly because she may eventually be forced to back away from it.)

"Gableman admitted that he lied in a campaign ad."

I wonder where the Shepherd Express got that particular claim from.  

Earlier: Recall Gableman, argues the Shepherd Express

Wisconsin SC Justice David Prosser: Evil genius?

Wisconsin Public Radio reports:

Prosser recused himself from this case under public pressure because it was scheduled to be argued by Jim Troupis, Prosser's friend and an attorney in his successful recount earlier this year. Troupis was not in court for arguments. That could leave the court with a 3-3 split, which would allow the rule to go forward.

But see:

IT IS ORDERED that to preserve the status quo, the respondents are enjoined from enforcing the amendments to Wis. Admin. Code § GAB 1.28 published on July 31, 2010, pending further order of this court. — Wis. S. Ct., August 13, 2010

That is, enforcement of the rule, which requires disclosures from individuals making "express advocacy" on behalf of specific political candidates, is prohibited by the court's August 13, 2010 injunction. And, if the Prosser-less court is unable to reach a majority disposition, then no "further order" can be made reversing the order of injunction.

Moreover, because Wisconsin Prosperity Network v. Myse is an original action, filed directly with the Supreme Court, there is no lower court decision to stand, in the event of a high court deadlock. Therefore, contrary to Wisconsin Public Radio's claim — and the claims of other press reports — such a division would not allow the rule to go forward, but rather serve to keep the court's August 13, 2010 injunction in force.

So not only would 2011 be the year of "supervisory/original jurisdiction," it would also be the year of the "temporary/permanent injunction."

Yet another remarkable wrinkle of this case is the fact that Justice Prosser was part of the majority that ordered the injunction in August, 2010, ceased participating in the case in August, 2011, and finally, on September 2, 2011, formally disqualified himself from the case (the Milwaukee Journal-Sentinel editorial board took credit for Prosser's disqualification this month, even though this here blog had pointed to Prosser's conflicting relationships with James Troupis way back in April).

That is, Justice Prosser's non-availability for formation of a majority disposition may prevent the Supreme Court from undoing that which Justice Prosser himself hath wrought. And, finally, it may be recalled that a majority of the court — complete with a concurring opinion authored by Prosser and joined by his close political ally Mike Gableman — exercised the extraordinary power of injunction prior to deciding whether it even had jurisdiction over the case in the first instance.

And by way of doing so, literally rewrote the Wisconsin constitution.*

Unprecedented, or, less charitably, making-it-up-as-they-go-along.

* How anybody considers this "conservative jurisprudence" is beyond me.

Wisconsin: Harder to vote than be a rapist

The following is an exchange between James Freimuth, an assistant attorney general with the Wisconsin Department of Justice, and Shirley Abrahamson, the Chief Justice of the Wisconsin Supreme Court. They are discussing what counts as "[t]he address at which the person is or will be residing" for purposes of the State sex offender registry in the case of State v. Willliam Dinkins, Sr. Dinkins was convicted of first degree sexual assault of a child in 1999 and then convicted in 2008 of failure to provide sex offender information upon his release from prison.

The Department of Justice argues that a park bench is a residence:

AAG: Black's Law Dictionary defines residence in part as, quote, 'the place where one actually lives, as distinguished from a domicile. Residence usually just means bodily presence as an inhabitant in a given place,' unquote. Also the word address ...

CJ: Those are the definitions you want? For 'reside'?

AAG: Uh, right. I think, well ...

CJ: Temporary. Actually lives.

AAG: Correct.

CJ: So, park bench okay?

AAG: Yes.

CJ: Grate outside the State Capitol okay?

AAG: Yes. Any location that's reportable to the Department of Corrections.

For comparison, see Wis. Stat. § 6.34(3)(a) for the documentation required to prove residency for the purposes of voting in Wisconsin. So there you have it. According to J.B. Van Hollen's Department of Justice, it's easier to register as a sex offender than it is to vote in an election.

And, with the State's new photo ID law, Governor Scott Walker and the Republicans who control the legislative branch just made it even harder.

Harder to exercise what is, according to the conservative Wisconsin Supreme Court Justice Patience Roggensack, a fundamental right guaranteed by the First Amendment to the United States Constitution.

eta: "[Y]ou should refrain from offering the free version to customers who do not ask for it." Wouldn't want to make it any easier to vote.

Story.

There are no excuses for Deepak Chopra

This is pretty comical.

It's true, I did say Deepak Chopra's got a bug up his Root Chakra, but I wasn't making excuses for him. Because there are none. And what's missing from the Storyful account is Deepak Chopra telling me, "It felt so good" (which he's since deleted), and my advising him, out of concern for even the Cosmos's tiniest creatures: "[It's] not so good for the bug."

Deepak Chopra is full of harebrained baloney.

Alleged law professor Althouse skewered again

Along with our friend Prof. Rick into the bargain this time:

I had always assumed the strength of lawyers was their ability to marshal logic, facts and analysis.[*] Esenberg and Althouse were unable to marshal even one of the three.

By the way, this space addressed Esenberg's nonsense months ago.

* Not to mention professors of the law. It's horrifying.

Dinkins was convicted after a park bench trial

One of the cases that Wisconsin Supreme Court Justice David Prosser will get to hear today is State v. William Dinkins, Sr., which concerns the elements of reporting convicted sex offenders are required to comply with upon their release from prison, pursuant to the Wisconsin sex offender registry. Among those requirements: "The address at which the person is or will be residing." (Wis. Stat. § 301.45(2)(a)5.)

Despite his and his parole agent's repeated efforts to find someplace to live, Dinkins was unable to provide the "address" required by the statute and Dinkins was convicted of "knowingly" violating the reporting requirement. On appeal, Dinkins's conviction was thrown out, partly because the word "residing" is not defined in the statutes and the court of appeals determined that, "the term 'residing' in the address reporting requirement plainly does not encompass a park bench — or a heating grate, bush, highway underpass, or other similar on-the-street location, for that matter." The Department of Justice contested that ruling, claiming that accepting Dinkins's argument would enable other sex offenders to evade the address reporting requirement simply by not bothering to try and find a place to live, or "reside," as the statute says.

Which arguably would be a "knowing" evasion.

This case is not about other sex offenders, however.

It's about Dinkins, who contends:

Well-settled principles of statutory construction support Dinkins’ argument that a person in his unique position cannot be convicted of violating this statute by failing to report the address at which he will be residing without evidence that he knew, at the time he was required to make that report, where that residence would be. That is, [Dinkins's] knowledge of the location of his future residence is a necessary element of this crime. . . .

It would be absurd to convict a person of a Class H felony, which carries a maximum punishment of six years in prison, for failing to provide information which he doesn’t have or which may not even exist.

Seems straightforward enough to me. Sometimes the laws are poorly drafted and as this space suggested earlier, the solution is for the legislature to fix them, not bring them to this Supreme Court, which is dominated by alleged "conservatives" more inclined to make stuff up.

Which, obviously, the WISDOJ is depending upon this morning.

"The Walkers are upgrading the mansion."

Happy Labor Day, Wisconsin.

The Journal-Sentinel endorsed a liar for governor

According to its own self.

To date, the Milwaukee Journal-Sentinel's "PolitiFact" division has looked at 32 separate statements of Wisconsin Governor Scott Walker and found only eight of them "True" or "Mostly True." Twenty-one are "False" or "Mostly False." The remainder, three, were "Half True." As of yet, no remorse has been detected from the paper's board of editorialists.

Bagmen, egomaniacs, and kooks

Reflections of a GOP Operative Who Left the Cult:

Among the Republican base, there is constant harping about somebody else, some "other," who is deliberately, assiduously and with malice aforethought subverting the Good, the True and the Beautiful: Subversives. Commies. Socialists. Ragheads. Secular humanists. Blacks. Fags. Feminazis. The list may change with the political needs of the moment, but they always seem to need a scapegoat to hate and fear. It is not clear to me how many GOP officeholders believe this reactionary and paranoid claptrap. I would bet that most do not. But they cynically feed the worst instincts of their fearful and angry low-information political base with a nod and a wink. . . .

I left because I was appalled at the headlong rush of Republicans, like Gadarene swine, to embrace policies that are deeply damaging to this country's future; and contemptuous of the feckless, craven incompetence of Democrats in their half-hearted attempts to stop them. And, in truth, I left as an act of rational self-interest. Having gutted private-sector pensions and health benefits as a result of their embrace of outsourcing, union busting and "shareholder value," the GOP now thinks it is only fair that public-sector workers give up their pensions and benefits, too. Hence the intensification of the GOP's decades-long campaign of scorn against government workers. Under the circumstances, it is simply safer to be a current retiree rather than a prospective one. . . .

Ever since the bifurcation of electronic media into a more or less respectable "hard news" segment and a rabidly ideological talk radio and cable TV political propaganda arm, the "respectable" media have been terrified of any criticism for perceived bias. Hence, they hew to the practice of false evenhandedness.

Read the whole thing.

Milwaukee Journal-Sentinel story is eerily familiar

This here, very top of the (electronic) fold at the moment.

Thought I read about that somewhere, one entire week ago.

Can't get no respect.

Come to think of it, you read about publication here first too.

"I'm aware of a story involving another justice."

In light of our friend Mike Gableman's repeated claims that Wisconsin Supreme Court Justice Ann Walsh Bradley had "hit" or "struck" him on the head on September 18, 2009, let's revisit a portion of Justice David Prosser's testimony to Dane County Sheriff's Office detectives on July 8, 2011. At 1:30:28, one of the detectives begins asking Prosser whether he was aware of any earlier instances of Justice Bradley "doing something to somebody else in the past," having "had physical contact with somebody." At 1:31:25, the detective gets down to brass tacks:

Detective: Had you witnessed Justice Bradley ever charge at anybody like this in the past?

Prosser: I have never seen her charge anybody once.

Detective: Okay. Is there a reason, uh, are you aware that anything like that's happened? Before [June 13, 2011]?

Prosser: Yes.

Detective: You're aware of an incident specific with Justice Bradley ...

Prosser: Yes.

Detective: ... that she has charged other people. Anything that you've witnessed?

Prosser: Yes.

Detective: Okay. Did that just contradict what you just earlier said? Because I thought you just said you never witnessed anything. Is that correct or am I a little off on that?

Other detective: You're aware of it?

Prosser: [Sighs] I ... [chuckles]. Okay, I'm aware of a story involving another justice. I didn't see that.

Detective: Okay.

Now, recall that Mike Gableman told the detectives on July 5, 2011, that Justice Bradley had "hit" him on the back of the head on September 18, 2008 and that he, Gableman, had never told anyone about this alleged incident prior to his July 5, 2011 interview with Dane County detectives.

On August 31, 2011, reporter Dee Hall of the Wisconsin State Journal discovered that the court had not convened any meetings on September 18, 2008. On September 1, 2011, Gableman released a statement claiming that it was September 18, 2009 that Justice Bradley "struck" him on the back of the head and that all seven justices were present.

Justice Bradley, Chief Justice Abrahamson, and Justice Crooks all affirmatively denied that any such head-striking incident ever took place. On July 18, 2011, Justice Ziegler told the detectives that Gableman had "recently" told her about the alleged head-striking incident but that she had no details of the alleged incident, nor could she be specific about when Gableman told her about the alleged incident.

(Justice Ziegler did not mention the alleged head-striking incident at her first meeting with detectives, which took place on June 30, 2011.)

The obvious question presents itself: Was Justice Prosser referring to the same head-striking incident that Gableman has alleged? If so, for one thing, Justice Prosser says he wasn't there, despite Gableman's statement that all seven justices were present on September 18, 2009.

And if so, for another thing, why did Gableman tell Justice Prosser, and furthermore tell Justice Ziegler, following his meeting with detectives on July 5, 2011, after never having spoken about the incident between September 18, 2009 and July 5, 2011, as Gableman had claimed?

And what about the one remaining justice, Justice Roggensack, who Gableman alleges was also present on September 18, 2009? Did Gableman likewise inform her? Roggensack has not commented so far.

Wisely, in my humble estimation.

In short, did Gableman round up his "conservative" pals on the court to make them aware of the little incendiary device he'd dropped to the detectives on July 5, 2011, to make sure everybody had their stories straight in case the topic arose? Seems like a reasonable question to me.

Aina? Inquiring minds want to know.

Facts hard to come by in Supreme Court kerfuffle

A couple of readers have commented as to Wisconsin Supreme Court Justice David Prosser's height, further to his colleague Mike Gableman's description of Prosser relative to Justice Ann Walsh Bradley: "Gableman believes Justice Bradley is a little bit taller than Justice Prosser."

To wit:

I can say with confidence there is absolutely no way Prosser is 5'9", regardless of how he describes himself. Probably 5'6".

And:

The truth is that Prosser is nowhere near 5'9". I'm 5'8", and he's a lot shorter than I am.

According to Prosser himself:

Detective: How tall are you, sir?
Prosser: Five-nine.
Detective: You're five-nine.
Prosser: Yeah.

For the record (the question is at 1:02:23).*

Don't most people know how tall they are?

* That's an .mp3, so you can download it and put it on your iPod.

Who will be the next Wisconsin special prosecutor

On July 5, Mike Gableman, who is a justice of the Wisconsin Supreme Court, told investigators with the Dane County Sheriff's Office that a colleague, Justice Ann Walsh Bradley, hit him on the back of the head.

More recently Gableman upgraded the circumstances of the alleged battery to "struck" — "Justice Bradley struck me," Gableman declared in a press release yesterday. Initially Gableman affirmed to detectives that Bradley did so on September 18, 2008, his birthday, and weeks after his installation on the court. After it was determined that it was impossible for such an event to have taken place, Gableman moved the battery forward one year, to 2009, claiming now to be "uncertain" of the date.

Three justices, including Bradley, Chief Justice Shirley Abrahamson, and Justice Patrick Crooks, have essentially accused Gableman of lying. They all say the incident never happened. A fifth justice, Annette Ziegler, says she didn't know anything about the incident until Gableman told her his tale. The remaining two justices, Prosser and Roggensack, have been understandably mum. If they affirm Gableman's story, then by extension they become parties to the lie that Mike Gableman stands accused of.

Gableman says all seven justices were present on September 18, 2009.

When Justice Bradley accused Justice Prosser of having her in a "choke hold" — and Prosser did confess to having both hands around her neck — the matter spurred a criminal investigation, although the appointed special prosecutor declined to pursue charges. In the meantime, a separate investigation by the Wisconsin Judicial Commission is ongoing.

This blog has certainly never been a fan of Mike Gableman, ever since he began misrepresenting the law back in December, 2007, in furtherance of his nakedly partisan political ambitions. In fact this blog has found Gableman's behavior to be reprehensible. But if there needed to be a criminal investigation into Justice Bradley's allegations, then there needs to be a similar investigation into Gableman's. And obviously the Judicial Commission, which monitors judicial ethics, must likewise investigate.

Because somebody is lying. The Supreme Court is tasked with the enforcement of the legal profession's code of ethical conduct. Its members should be setting the example, and not undermining it.