Repugnant, unconstitutional, and void on its face

Tell us what you really think, unanimous Supreme Court of Oklahoma.

Conservative bishop would let liberal corpses rot

Is what it says here. Nice religion you got there buddy.

The penalty was widely used in the Middle Ages ...

So Mr. Morlino's nostalgic for the golden days of fanaticism. Figures.

Prosser complaint "has gone on long enough" — MJS

Even though it's barely gotten started

Drop the Wisconsin Judicial Commission complaint against Supreme Court Justice David Prosser, urges the deep thinkers at the Milwaukee Journal-Sentinel editorial board. "Under normal procedure, the court would appoint a panel of three appeals court judges who would hear the case," they claim. What is "normal procedure"? Well, they don't say.

Presumably the edit board is relying on unsubstantiated claims made by Justice Prosser and his attorneys and reported by the Journal-Sentinel. In fact those are the main premises underlying the Journal-Sentinel's argument, if indeed one can straighfacedly call it an argument at all.

But the Wisconsin statutes clearly say that the chief judge of the court of appeals shall appoint the panel. And apparently the Journal-Sentinel couldn't care less for the law, so often has its falsehood been repeated.

Prosser is a Republican whose reelection the Journal-Sentinel supported.

Because, as the edit board offered at the time, "he is a good writer."

The Milwaukee Journal-Sentinel's point of view

"The [May 8 primary] election will again feature 'fake' or 'protest' candidates, depending on one's point of view," sez the Milwaukee Journal-Sentinel. Those are candidates running under the rubric 'Democrat' even though they were "recruited by the Republican Party," which calls them "protest" candidates. The J-S then goes on to refer to them as "protest candidates" five times and never as "fake candidates."

Because, ya know, it "depends on one's point of view."

On teh web: Journal Communications, Inc.

Wisconsin high court takes a four-bambini lunch

Video link to the portion of yesterday's Wisconsin Supreme Court open administrative conference which Justices Prosser, Roggensack, Ziegler, and Gableman* refused to attend. Reportedly the quartet objected to an open discussion of Justice Roggensack's proposal to do away with open discussions. The remaining three justices discuss why Roggensack et al's reasoning is fatuous. Mike Gableman had complained that the open conferences had no parallels in other States — a false claim, evidently** — and Justice Ziegler was concerned that the open conferences contributed to the diminished public esteem in which the court is held.

Which makes sense because when the CJ has to send the marshal to solicit the votes of four justices who are pouting in their chambers like spoiled children, public esteem for the institution is greatly augmented.

* The "conservatives." Just call them Republicans and get it over with.

** False claims being what Gableman is most famous for and indeed helped Gableman to a Supreme Court chambers in which to now pout.

Justice Crooks "eager to damage" Justice Prosser

Or so claims an overly paranoid Justice Prosser.

Now that's one for the annals of ridiculous "defenses."

This motion [to recuse] expects that Justice Crooks will understand that he cannot participate as a judge in this case.

Well, yeah, he probably understands that he may not sit on the panel.

Good grief. Republicans have no principles, "conservative" or otherwise.
Apart from saving their own asses from any consequences, of course.

Wis. Ct. App. chief judge needs to get to work

Notes otherwise highly astute Milwaukee Journal-Sentinel reporter Patrick Marley, in the 30th paragraph of a 31-paragraph story:

State law does not explicitly say an order from the Supreme Court is needed to create a panel to review a judge's conduct.

Nor even does it implicitly say it. However what State law explicitly does say is that the chief judge of the Court of Appeals shall create a panel. That is a statutory directive to the chief judge. Justice Prosser's is not a case that is "before" the Supreme Court until the three-judge panel has done its work, heard from the parties and their attorneys, made its findings, and published its recommendations. Then the panel's work becomes a thing* that is before the Supreme Court. Thus Justice Prosser's demands that several of his colleagues step aside from his case are unripe, clearly. That the Wisconsin Judicial Commission's complaints are filed initially with the Supreme Court is but mere formal notice.

Obviously that court needs to be made aware that there is a pending complaint against one of the State judges over whom the high court has supervisory authority** in matters concerning a judge's alleged unethical conduct or questions as to a judge's competence or mental fitness.

To put it bluntly, Court of Appeals Chief Judge Richard Brown is failing to comply with an explicit statutory command so long as he waits for the Supreme Court to "order" the formation of the three-judge panel. He himself needs to order that panel's formation without further delay.

The law mandates it. Full stop.

* Neither civil nor criminal.

** The supervisory authority does not extend to cases where justices of the Supreme Court disagree with the legal work — be it procedural or substantive — of a trial court judge. Indeed it was the flagrant abuse of the supervisory authority that led Justice Prosser and his three allegedly conservative sistren/brethren to their unwarrantedly mean-spirited vacating of Dane County Circuit Judge Maryann Sumi's orders last June.

Dispositions such as those are what appellate — and not supervisory — jurisdiction is for and, somewhat incredibly, those same four allegedly conservative justices at the same time dismissed the appeal of Judge Sumi's orders. You want to talk about a dysfunctional court, never mind the much-publicized personal animosity among the justices, look at how this court's conservative majority is sneering in the face of the law.

The law is a pliable concept in many instances but this ain't one of 'em.

Another coup for Media Trackers' Brian Sikma

What sort of man reads Media Trackers?

What, no bonus for Mike "Peppercorn" Gableman?

"We're broke." — Wisconsin Governor Scott Walker, repeatedly

You have got to be effing kidding me:

Assistant Attorney General Maria Lazar, who defended Walker's collective bargaining law in an open meetings challenge and has handled the State's defense of Republican redistricting legislation, got a $1,000 bonus and a $1.50-an-hour raise in March, bumping her salary by more than $3,000 to $104,730.

Deputy Attorney General Kevin St. John, who defended the collective bargaining law in front of the State Supreme Court, got a $2.51-an-hour raise in March that adds up to more than $5,000 per year and brings his pay to $134,307.

Some defense.

Ms. Lazar admitted in a Dane County trial court that the Fitz Van Walker regime both broke the Wisconsin Open Meetings Law and violated the State constitution, which was pretty much dispositive in Judge Maryann Sumi's decision to enjoin Act 10, Scott Walker's "signature" union-busting "achievement"* and Mr. St. John, the lead attorney by the time the case got to the State Supreme Court, would have by rights lost that case but not for the alleged "conservatives" on the court dreaming up a jurisdiction unauthorized by the constitution.

Oh and by the way, contrary to the AP story, St. John & Co. were not "defend[ing] the collective bargaining law," they were defending the Wisconsin Republicans' breaking the law and violating the constitution.

This is what passes for meritoriousness under Scott Walker. Incroyable.

* From the MJS's comically fawning report of Walker's "barnstorming."

Policy applies to "credible news organizations"

So I guess that lets the Wisconsin State Journal off the hook.

Milwaukee Journal-Sentinel outrage at Ted Nugent

Oh, wait, sorry, that was at Hilary Rosen. Ted Nugent is a Republican.

Our old pal Wisconsin Senator Ron Johnson

Two classics from two of Wisconsin's best political blogs:*

Ron Johnson: As bad as I said he would be

Ron Johnson's Political Career is Over

What a maroon.

* And not exactly flaming liberals, either of 'em.

Today's informative Wisconsin headlines

MJS: Wisconsin lost 4,300 private sector jobs in March

MJS: Walker promise to "create 250K new jobs" is "in the works"

lulz

You know they take you for utter fools, aina?

Why hasn't Prosser called for Gableman's recusal?

File under: Mike Gableman's date uncertain

Anybody remember these two little ditties?

Who will be the next Wisconsin special prosecutor — 09.02.2011

"I'm aware of a story involving another justice." — 09.03.2011

Perhaps Justice Prosser needs "the Honorable" Mike Gableman to testify to Justice Ann Walsh Bradley's history of workplace violence. But seriously, why has Mike Gableman thus far been immune from either a criminal or a judicial commission investigation? Or, for that matter, Justice Bradley? Because Gableman accused Justice Bradley of "striking" him on the back of the head. Or could it be that everyone else — like your humble correspondent — can't possibly take Gableman seriously.*

And, lest we forget the famous peppercorn ...

* With the exception of Justice Prosser, who calls Gableman, "tireless, indefatigable, and brilliant" (brilliance is doubly tiring doncha know).

Prosser also told the public to "get over" Gableman's pisspoor ethics. No. I personally find Justice Prosser's latter admonition ironic, as it was he who swore me into the Wisconsin bar immediately upon delivering a lecture on the paramount importance of professional ethics.

Was I not to have taken him seriously either?

Full disclosure at the Milwaukee Journal-Sentinel

Er, not quite.

"Walker returns $170,000 to business group's PAC," it says here: "Metropolitan Milwaukee Association of Commerce says it misunderstood GAB guidance on giving." Did you know that Steven J. Smith, chairman of the board and chief executive officer of Journal Communications, Inc., which owns both the Milwaukee Journal-Sentinel and the insufferable dissembler Charlie Sykes, and whose local teevee station plays weekly host to sleazy hacks like Brian Sikma of Media Trackers, is also an officer on the board of directors with the Metropolitan Milwaukee Association of Commerce? Well, you may have known it but you wouldn't have known by reading the Milwaukee Journal-Sentinel.

And it's not the first time you wouldn't have known it either.

Incidentally MMAC chairman Ulice Payne, Jr. conducted a panel I attended during orientation week at Marquette University Law School which turned out to be devoted exclusively to Payne's glorifying "how much money you will make." Payne, who at the time was a partner at Foley & Lardner, brought along a new associate with the firm and recent graduate of MULS. Payne instructed the young woman to tell the audience what her starting salary was and warned her that if she didn't provide this information then he would. It was a display so unseemly that I had to leave the hall and thence avoid the rest of orientation week.

That's an ostensibly Catholic institution, by the way, so perhaps Payne was emphasizing "how much money you will make" so you can give lots of it to charity. But I doubt it because Payne further emphasized that $10K of the new attorney's compensation was in clothing allowance, and the young associate wasn't exactly dressed in sackcloth (nor was Payne).

This while the State Bar of Wisconsin labors to disabuse the popular perception of attorneys as money-grubbing. Deftly played, Mr. Payne.

Teach those baby lawyers well.

Patience Roggensack Prosser's latest recusal target

"The objective standards for recusal in Wis. Stat. $ 757.19(2)(b) are unequivocal," asserts Justice David "Side Door" Prosser's attorney, Kevin Reak. "In view of the statutory mandate, I am writing to request respectfully that you [Justice Patience Roggensack] recuse yourself in this matter." Firstly, Mr. Reak's reference to the "statutory mandate" is inconsistent, in that he just got done asserting that "the [Wisconsin Judicial Commission's] complaint will remain in the Supreme Court until the Court issues an order sending the matter to the Chief Judge of the Court of Appeals for the appointment of a three-judge panel."

And ironic because there is no "statutory mandate" requiring any such Supreme Court order and in fact the statutory mandate issues directly to the Chief Judge of the Court of Appeals to appoint the three-judge panel without any supplementary order required from the higher court.

Secondly the recusal statute to which Counselor Reak cites is limited to "any civil or criminal action or proceeding," which raises the question whether a judicial commission investigation is either a civil or criminal action. We know it's not a criminal action because there are no criminal penalties attached to the panoply of disciplinary moves the Supreme Court may make upon review of the three-judge panel's recommended disposition (which the Supreme Court may also ignore completely).

And we may quite possibly know that a judicial commission investigation is not a civil action either, because as Wis. Stat. § 757.85(7) instructs, "[i]nsofar as practicable, the procedures applicable to civil actions apply to proceedings under ss. 757.81 to 757.99 [the statutory sections regulating the judicial commission and its activities] after the filing of a complaint or petition." In other words the statutes explicitly contemplate that procedures applicable to civil actions may not be practicable, which inapplicable or impracticable procedures would place them outside the purview of Wisconsin civil procedure delineated elsewhere in the State statutes. So how could a judicial commission investigation be a civil action if it doesn't conform to the rules of civil actions? It cannot be.

In any event the plain language of the Wisconsin statute prima facie distinguishes judicial commission investigations from civil actions.

This here blargh has mentioned on previous occasions that the statutory framework governing judicial commission investigations is a bit of a mess. Indeed Justice N. Patrick Crooks pointed out a number of discrepancies to a State legislative committee in the wake of the Mike Gableman debacle a couple of years ago and suggested that representatives of that committee would do well to sit down and review those discrepancies and do something about them, but they never did.

They should have listened to him. He's a very smart guy, in particular in matters of legal procedure, and he's been a judge for several decades.

So here we are again, and Mr. Reak has apparently unwittingly limned yet another inconsistency in the law. However it seems to me he cannot rely on the recusal statute he's referencing for the above-mentioned reasons so perhaps he needs to get back to the drawing board himself.

Make that "Side Door Davey"

Sez Franklyn M. Gimbel:

The [Wisconsin Judicial] Commission is opposed to the use of any side door or issuance of any dispositive decisions that would avoid such a hearing.

But you already knew that Court of Appeals Chief Judge Richard S. Brown* does not need any supplementary order from the Supreme Court to form a panel to hear the case against Justice David Prosser. Just because Prosser's attorney claims that such supplementary order was issued in the past does not mean that it is required in the present instance and especially does not mean that it was required in the past.

If that past practice was wrong, you don't follow it. Yet apparently that is what Justice Prosser wants to do: follow an incorrect past practice.

Make of that what you will. I think it's kind of funny. And sad.

* Who holds an advanced degree in Judicial Process.

P.S. The first sentence of Gimbel's second paragraph makes no sense, or else Brown is an "advised Judge" and Gimbel provided a copy of him.

Which at least wouldn't be as bad as cloning Justice Prosser's odious partner in mutual admiration, "the Honorable" Michael Gableman.

Scott Walker spokesmodel's "predominant function"

According to a United States Federal District Court:

Hooters has admitted that the Hooters Girl's predominant function is to provide vicarious sexual recreation, to titillate, entice, and arouse male customers' fantasies.

Ms. Matthews et al don't do much for me, but I'm not a table:

[Hooters'] counsel stated that Hooters' trade dress consisted of ... a table-top setup consisting of a wooden vertical paper towel spool ... and table tents ...

Now there is some furniture Rebecca Kleefisch can marry.

h/t Jud Lounsbury.

Loop Hole Davey

Hi everybody! What's up with this?

[Wisconsin Court of Appeals Chief Judge Richard] Brown has said he needs an order from the Supreme Court to create the panel.

Where's he getting that from?

If a jury is not requested [which it was not], the matter shall be heard by a panel constituted under sub. (3).

Sub. (3):

A judicial conduct and permanent disability panel shall consist of either 3 court of appeals judges or 2 court of appeals judges and one reserve judge. Each judge may be selected from any court of appeals district including the potential selection of all judges from the same district. The chief judge of the court of appeals shall select the judges and designate which shall be presiding judge.

He don't need no stinking order. That's his order ("shall") right there.

And I wonder what Justice Prosser's BFF Mike Gableman thinks about Prosser trying on every procedural loophole in the book in an attempt to keep his ethics case out of court. As for Prosser's "sparring" with the Chief Justice over his ethics case's posture, Prosser is wrong. While the Judicial Commission's complaint is filed with the Supreme Court, that court has nothing to do with it until the panel has heard the case and issued its findings. However it's not surprising that Prosser believes his case is already before the Supreme Court, as he's been known to issue extraordinary writs in cases where he and his allegedly "conservative" colleagues do not even have jurisdiction (and then removing himself from the same case because his personal political campaign lawyer — the notorious James Troupis, Esq. — was set to argue the case before him).

Hope y'all are having fun up there!

White Stripes: Black Jack Davey