You are hereby notified of the following order

[T]he judicial discipline statutes, Wis. Stat. § 757.81 through § 757.99 (2009-10), do not require this court to act at this stage in the proceedings. . . . At this point, the statutes direct the chief judge of the court of appeals to select a judicial conduct panel.

— N. Patrick Crooks, J. (emphasis added)

So why doesn't he?

Earlier: Patience Roggensack Prosser's latest recusal target

"Comes now" the Milwaukee Journal-Sentinel

More rubbish from your local fishwrap's editorial board, decrying State Supreme Court Chief Justice Shirley Abrahamson's objection to the four allegedly "conservative" members of the court's refusal to reappoint learned counsel John Dawson to the Wisconsin Judicial Commission.

The edit board mandarins quote Justice David Prosser, the subject of a current Judicial Commission prosecution — which those same mandarins just happen to oppose — complaining about the Chief Justice putting her and two of her colleagues' objections to Prosser's refusal in writing.

Evidently the broad irony of Justice Prosser granting an "interview" with the editorial board to complain about Chief Justice Abrahamson's publication of a letter completely eludes the edit board's deep thinkers.

Or else they're depending on it eluding the mugs to whom they cater.

"And that word ['corrupt'] was used," bitches Justice Prosser to the Journal Communications, Inc. organ, without revealing the context, nor, apparently, do the editorialists see fit to ask for that context, as not providing it plays into the false equivalencies between the court's factions the local paper is in the business of fallaciously promoting.

How's this for a false equivalency: Three of the Supreme Court's four "conservatives" have been — or are being — prosecuted for violations of the Code of Judicial Conduct. Among the Chief Justice and Justices N. Patrick Crooks and Ann Walsh Bradley? Zero ethics prosecutions in total.

And, strangely enough, when those same four alleged "conservative" justices pouted in their respective chambers for more than an hour during one of the court's open administrative conferences, Messrs. David Haynes, Ernst-Ulrich Franzen, et al's silence was conspicuous.

But now their laughably self-righteous hypocrisy is palpable.

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.

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.

Who's paying Mike Gableman's lawyer Viet Dinh?

Or, for that matter, his "Master of Disaster"?

Gableman's attorney, Viet Dinh of Washington, D.C., said the resolution was nothing more than a partisan political attack that "reveals the underlying motivation and insidious nature of the attacks against Justice Gableman." — via the AP's Scott Bauer

I hope it's not much, if that's the best he can come up with. Poor Gableman. He's being attacked. What goes around comes around dude.

Mike Gableman attacks his own current colleagues fer chrissakes.

And who paid the infamous out-of-State agitator Jim Bopp? Bopp, Esq. of Terre Haute did the heavy lifting in Gableman's ethics case.* So effective was Bopp's counsel that he actually caused Justice N. Patrick Crooks to change his mind from favorable to adverse pursuant to a motion for disqualification filed against Gableman in a criminal appeal.

* And who paid Federalist Society member Anita Y. Woudenberg?

Mike Gableman is a walking make-work project for Republican lawyers.

Of Michael Best's "horn book" Civil Procedure

Looky here:

Because the Wisconsin Supreme Court tied over the ethics complaint, Gableman couldn't argue to the board that he had won and the State should cover his fees, Michael Best & Friedrich's chief attorney Jonathan Margolies said in the letter.

Well. Isn't that something. I have been saying for years that Mike Gableman failed to win his ethics case, because the three-judge panel below the Supreme Court convened on Gableman's motion for summary judgment, and pursuant to his own motion, Gableman was unsuccessful. And it also happens to be a conclusion in which Justice N. Patrick Crooks, who has been a judge for more than three decades, concurs.

(I reckon Crooks, J. knows a thing or eleventeen about legal procedure.)

Therefore does the ethics complaint against Gableman remain pending.

Mr. Margolies might presumably know better than anybody, as it was one of his colleagues at Michael Best who participated in Gableman's defense.* This space's conclusion was based on an examination of the statutory framework governing the civil procedure with which the State deals with ethics allegations against judges. This space does not make substantive legal claims without having undertaken such examinations.

So it amuses me no end to recall that Richard Esenberg, a professor of the law at Marquette University, would criticize me by asserting that my view of the Gableman case's procedural posture was informed merely by "a reference to horn book Civil Procedure" which "does not cut it here."

A "horn book" is something like a Cliff's Notes that first-year law students use to prepare for exams. Esenberg is billed as a "prominent Milwaukee attorney" by Wisconsin Public Radio but his condescension on occasion most certainly does not comport with that description.

Now perhaps Esenberg can direct his scorn at MB&F's chief attorney.

I am always suspicious of Esenberg's claims, and you should be too. Yet Wisconsin Public Radio and other local media outlets continue to present him as a disinterested academic, whereas he's as partisan as they come.

Esenberg's former research assistant's claims are mighty lame as well.**

Feet of the master and all that, apparently. Laughable.

* At no charge, as it turns out. And a classy defense it was indeed.

** I trust that was the end of atrocious legal analysis from the faculty blog, since Prof. Esenberg is abdicated as one of the website's editors.

"Prosser, J., did not participate."

[Dec. 2]

UPDATE 1: Justice Prosser is ill.
UPDATE 2: The petition is withdrawn.

Unstated whether 2 follows directly from 1, but it was among the "issues raised" in the Supreme Court of Wisconsin's November 30 order. You'd expect the withdrawal to come about on account of the substantive issues raised, but this is primarily about political power for these folks.

And they most likely don't want to roll the dice on a 3-3 split. Which may give some indication as to their confidence in their legal argument. Keep that in mind if and when they get around to re-filing their petition. They still have three in the bag but they don't want to try and persuade Justice Crooks (who may well be the most reasonable one of the bunch).

UPDATE 3: '[Law] specifically precludes this procedural manipulation.'

Ya gotta love this stuff. I mean, it's Republicans making a complete mockery of judicial process, but you have to keep your sense of humor.

UPDATE 4: This from the plaintiffs in the federal redistricting action.

[/Dec. 2]
__________________________________

Wonder how come.*

I get the heebie jeebies when this court starts asking about jurisdiction.

And why even bother asking. They just make it up any/way.

* By the way this is the lawsuit where a group of Republican Teactivists are suing the State Government Accountability Board, on a theory that the GAB actually sat down and read the law drafted by those same lawyers who are representing the Republican Teactivists in the present case, passed by both Republican-controlled legislative houses and signed by Republican Governor Scott Walker. In other words, reading the law and repeating it back to legislative clerks is now a cause of action in the State of Wisconsin. Sounds facetious, but I'm afraid that's accurate.

It's as though the GAB was set up so the suit could be filed because what the WISGOPers are attacking is in fact their own recently enacted law.

In a word, scapegoating.

Because WISGOP v. WISGOP sounds ridiculous, doesn't it? Yet that's exactly what the Republicans, through their silk stocking attorneys, are up to with this: suing themselves. And they've effectively forced the State Government Accountability Board into the position of "adversary."

I wonder if they can sue themselves for ineffective assistance of counsel, because they shelled out hundreds of thousands in fees for, inter alia, this one gigantic boner they're trying to have rectified by judicial fiat.

The GAB's interpretation is not even a close call. It's plain meaning.

Face it, this gang is terrified at losing the Senate. One or two of these Senate recalls are more important than knocking off the Desperado.

Moreover if the Republican Teactivists' theory is correct, then the recall elections that were held last summer were held in "unconstitutionally malapportioned" districts as well. Although the petitioners have not identified at what point in time the current electoral districts became "unconstitutionally malapportioned," it clearly would have been before last summer, because unconstitutional malapportionment was precisely the evil that legislative Republicans undertook to remedy last winter.

So if Republicans are crowing about Democratic "failure" in contesting those districts — and they are — then what harms are a couple more contests in "unconstitutionally malapportioned" districts going to cause?

That's for the next round of questions, I guess.

Memorandum in Support of Petition (Nov. 21)
Supreme Court Order (Nov. 30)

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.

"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.

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.

Mike Gableman is lying, say justices

And for no purposeful reason whatsoever, it would appear:

"Whether it is Justice Gableman's original version or his new version, his described event simply did not happen," Bradley said. "I did not strike him on the head in 2008, 2009, or ever. Abrahamson [CJ] and Crooks, in a separate statement, also repeated that "no incident as described by Justice Gableman, and no similar incident, ever occurred in our presence."

Wisconsin State Journal — Dee Hall.

More from Patrick Marley in the Milwaukee Journal-Sentinel.

Justice Ziegler knew nothing of the alleged incident. Gableman's other allies, Justices Prosser and Roggensack, have been silent so far. What are they going to say? Mike Gableman claims they were all present.

Are they going to corroborate Gableman's tale? Seems unlikely now.

And Gableman lied to get on the court in the first place.

An extraordinary writ is a supervisory remedy

Affirmed the Wisconsin Supreme Court, yesterday:

A supervisory writ is an extraordinary remedy to prevent a court from refusing to perform, or from violating, its plain duty.

So, is that what Dane County Circuit Judge Maryann Sumi did?

No, of course not. Which is apparently why the same Wisconsin Supreme Court, by a majority composed of the same four conservative justices who just one month ago needed to invent a novel form of judicial authority, which it dubbed "supervisory/original jurisdiction," to avoid precisely the requirement the Wisconsin Supreme Court now affirms.

The court elaborates:

[A] petition for a supervisory writ will not be issued unless the duty of the circuit court is plain [and the circuit court's] refusal to act within the line of such duty or its intent to act in violation of such duty is clear.

I'm paraphrasing. Yesterday's majority supplies the underlining.

Not only did the Supreme Court, in Huebsch v. Dane County Circuit Court, fail to describe either what Judge Sumi's plain duty was or how exactly she refused it or intended to violate it — and yesterday the Supreme Court confirmed that a supervisory court must do both — in fact neither the term "plain" nor the term "duty" even appear in the court's June 14 order in the context of Judge Sumi's deliberations.

Thus may one puzzle as to how the Supreme Court might issue a supervisory writ without even addressing the criteria by which it exercises its authority to issue a supervisory writ, let alone explaining it.

Simple: Invent a novel source of judicial authority, what any self-respecting conservative jurisprude would do, of course. For we are assured they are conservatives, even by those judges themselves.

Granted, they are conservative Republicans. But conservative in the sense of the oft-invoked and sacred canons of "judicial restraint"? Considerably less so, expediency permitting. Indeed if anyone was carefully mindful of conservative principles of restraint, it was Sumi.

And, more remarkably, yesterday the court clarified that "a supervisory writ is dedicated to the discretion of the court of original jurisdiction."

That's ambiguous, but what it means is the supervisory writ is aimed at the discretion of the court of original jurisdiction. That is, it's the discretion of the court of original jurisdiction, and the alleged abuse of that discretion, which a supervisory writ is dedicated to supervising.

And in Huebsch, the court of original jurisdiction was the one named in Huebsch's petition, the one presided over by Dane County Judge Sumi. That's what original jurisdiction means: the first court to hear the case.

In fact the Supreme Court was the third court to have been presented the case, the second being the District IV Court of Appeals, which passed the Department of Justice's previous motion for permission to appeal on to the Supreme Court.* So how in the world could the Supreme Court exercise any claimed definition of original jurisdiction over this case?

Again, piece of cake: Slap together with some punctuation the court's supervisory authority and its power to hear cases in original jurisdiction.

The Wisconsin constitution empowers the Supreme Court with four separate avenues of authority: superintending (a.k.a. supervisory), administrative (which is not at issue in Huebsch v. Dane County), appellate jurisdiction (the Huebsch Court dismissed the DOJ's petition to exercise its appellate jurisdiction), and original jurisdiction. Original jurisdiction was off the table in March. As Justice Crooks flatly stated, "No petition for original jurisdiction ... was filed in this court by any party. . . . There is nothing 'original' or 'in the first instance' here."

The Department of Justice clearly understood this, as is evident from the entire procedural history of this case, and from all of the DOJ's paper filings. The Supreme Court maneuvered the DOJ into position to act as the Supreme Court's proxy in order to achieve the result that a majority of the Supreme Court sought. There is no other explanation.

There's certainly no other satisfactory explanation. Take a look at this bland assertion made by the Huebsch v. Dane County majority:

¶5 IT IS FURTHER ORDERED that the petition for original jurisdiction in Case No. 2011AP765-W is granted, State ex rel. La Follette v. Stitt, 114 Wis. 2d 358, 338 N.W.2d 684 (1983), and all motions to dismiss and for supplemental briefing are denied.

Case No. 2011AP765-W is a petition for supervisory writ, and not a petition for original jurisdiction. On the other hand, La Follette v. Stitt was a petition for original jurisdiction. The Huebsch majority does not tell us where exactly to look in La Follette v. Stitt to support its rationale; it merely cites the entire case. But presumably, it means this:

We granted the petition to commence an original action because this matter is publici juris and requires a prompt and authoritative determination by this court in the first instance.

However the (judge-made) doctrine of publici juris** is invoked in Stitt to justify the granting of La Follette's petition to the Supreme Court to accept original jurisdiction over his case. Indeed, Stitt itself cites to this prior caselaw: "If the matter is publici juris, this court may elect to take original jurisdiction if asked to do so." This underlining added.

Which the Huebsch Court wasn't asked. Its ¶5 is pure magical fiat.

Any conservative could tell you that.

Footnote footnote: Yesterday's footnote 6 is also pretty cute. It reads, "Wisconsin Stat. § 809.51 is the appellate rule that governs petitions for a '[s]upervisory writ and original jurisdiction to issue prerogative writ.'"

This is true as far as it goes but the fact of the matter is, Wis. Stat. § 809.51 also distinguishes between supervisory and original jurisdiction, presenting as it does a choice to prospective petitioners as to whether they will proceed in accordance with one or the other form of authority.

But the distinction is not so much germane to Huebsch, where the majority conjured a petition for an original action from a petition for a supervisory writ, and Huebsch doesn't get to § 809.51 except by way of § 809.71, which is the Supreme Court rule exclusive to its supervisory jurisdiction. While § 809.51 presents both options, the presence of two separate statutory provisions, § 809.71 and § 809.70, reinforces the contention that "supervisory/original jurisdiction" makes as much sense as "disorderly/theft" or "sexual assault of a/moveable property."***

On the other hand, the Supreme Court helpfully disabuses the absurdist notion that the only court referred to in Wis. Stat. § 809.51 is the court of appeals, a notion published in apparent seriousness on, of all places, the front page of the Marquette University Law School's faculty blog.

* And which the Supreme Court dismissed on June 14 — unanimously.

** Publici juris simply means "public right." The public also retains a couple of more fundamental rights: the right to draft constitutions and enact rules that define and delineate the powers of the courts and the right to not draft constitutions and not enact rules which authorize courts to combine those powers into new, judicially manufactured ones.

*** Notwithstanding Lt. Gov. Rebecca Kleefisch's table/marriages.

Walker judicial team brings the Gableman defense

Governor Scott Walker's judicial selection committee (.pdf; 3 pgs.) includes Michael Best & Friedrich partner Eric McLeod, who represented Supreme Court Justice/Gableman in the latter's unsuccessful bid to have a Wisconsin Judicial Commission ethics complaint against him dismissed.

Gableman was accused of lying in a Statewide election in 2008, Year of Our Lord. McLeod and Jim Bopp, a lawyer from Indiana, prepared Gableman's defense. I understand it's fallacious to attribute the client's views to his counsel — after all, that's what Justice/Gableman did in his unprecedentedly sleazy teevee ad* — but the judiciary is all about politics for the Walker administration, so why shouldn't it be for everybody else?

Put another way, you don't want to be cynical, but they force you.

Therefore if this is the message Walker wants to send, good for him, and if it energizes his detractors, all the better. Go for it, by all means.

On the other hand when three of the four self-described "conservative" justices who recently invented a novel form of judicial authority — which otherwise is supposed to derive from the State constitution, by the way, a connexion claimed yet ironically denied by the four "conservatives" to both the State's elected representatives and the trial judge in that case — are subject to ethics investigations and/or formal ethics complaints, it's presumed that Walker's selection committee couldn't do much worse.

Scott Walker's team also includes a fellow Gableman alumnus of Hamline University who, Walker's crack communications specialists advise us, "is currently practicing in the area of . . . Land Lord Tennant Law."

Good grief.

* Moreover, McLeod's co-counsel went so far as to malign the integrity of his client's rival by belittling him as the "type of person" who would take on a criminal case. In fact Bopp, Esq.'s remarks** were so offensive to those concerned with professional ethics that they induced Justice Patrick Crooks to switch his vote from dismissing a set of motions to have Justice/Gableman recused from criminal cases to granting those motions. That alone is a big deal and an even bigger deal that Crooks decided to make public his decision and his reasons for making it.

And it's why Lester Pines ruefully opined that nobody whoever practiced criminal defense — the right to which is guaranteed by the U.S. Constitution — could ever be a Supreme Court justice, which is most probably true, thanks to the cynical manipulation of Wisconsin's system of electing them by dishonest Republican politicians like Mike Gableman.

As was noted here in April, 2008, it's not the voters who can't be trusted when it comes to electing Supreme Court judges. It's the candidates.

** And it's not fallacious to attribute the counsel's views to the client.

Shorter Huebsch v. Sumi

If you don't have time to watch yesterday's entire marathon Wisconsin Supreme Court oral arguments, just watch these three lawyers.

Wisconsin Eye Part 2 of 3:

01:07:44 — Robert Jambois, counsel for Rep. Peter Barca
01:33:12 — Lester Pines, counsel for Sen. Mark Miller
02:05:18 — Roger Sage, counsel for Sec. of State Doug La Follette

Mr. Sage's presentation might be said to be optional, as he is addressing the question of whether 2011 Wisconsin Act 10 was published in the constitutional sense, and you already know all about that. In fact many of the issues raised by Messrs. Jambois and Pines would already be familiar to regular readers of this here blog. And while the Milwaukee Journal-Sentinel is reporting that the justices "expressed skepticism" toward the reasoning contained in Judge Sumi's temporary and final rulings, which is true to some extent, you won't hear much skepticism from the bench during either the Jambois or the Pines presentations.

And while the Journal-Sentinel reports* that "the most aggressive questioning came from Justice Michael Gableman," it came during the presentation of Dane County DA Ismail Ozanne (00:01:18) who, with all due respect, is probably less used to addressing the structural constitutional questions at issue in these two consolidated cases.

Last night apparently there were some rumors circulating that the court was preparing to vacate Judge Sumi's ruling, which would have the effect of codifying 2011 Wisconsin Act 10.** If that were to come to pass, I suspect the law might again be enjoined immediately, on the same factual grounds its publication was enjoined in the first place. And the said codification would have the effect of rendering Gableman's objections moot almost in their totality, insofar as those objections were grounded in the beloved 1943 case Goodland v. Zimmerman, which teaches that a court may not interfere with the legislative process until a bill becomes law (that is, in Wisconsin, once its publication is made).

Gableman's apparent objections appear to presume that the trial court, where Judge Sumi presides, is a rule-making authority rather than a circuit court making a narrow decision based only on the facts presented in evidence to that particular court.*** In other words, the concerns expressed by Gableman and appearing in the lead paragraphs of the Journal-Sentinel report are representative of a slippery slope fallacy.

Generally courts do not make rulings grounded in logical fallacies.

But you never know, with this one.

In any event, the guy you have to watch is Justice Patrick Crooks, who raised concerns similar to those of my friend Bill Tyroler, who suggests that the authority conferred on the district attorney by the Open Meetings Law to challenge the constitutionality of the legislative process is itself an unconstitutional delegation of power by the legislature to the executive branch, under which auspices the district attorney operates.

As this space has been observing practically since the outset of this controversy, it seems to me the only way the court can vacate Judge Sumi's very conservative, very restrained reasoning is to find the provisions of the Open Meetings Law upon which Judge Sumi relied to be themselves violative of judge-made — or at least judge-inferred — constitutional law doctrine. Why the Wisconsin Department of Justice is pursuing the objective of restricting public access to the operation of State government is either a mystery or completely typical and expected of the Republican Scott Walker administration and its disciples and allies.

* And once again, it is simply not correct to say that Judge Sumi was "allowed" to file a legal brief further to building maintenance supervisor Mike Huebsch's petition to the Supreme Court for a supervisory writ directed at Judge Sumi. Judge Sumi was ordered by the Supreme Court to file the brief. And now she is being criticized for not disobeying that order. This is how absurd the Wisconsin Department of Justice, under the direction of Deputy Attorney General Kevin St. John, has become.

** a.k.a. "legislating from the bench."

*** Among the more amusing moments during yesterday's proceedings was when Chief Justice Shirley Abrahamson directed Deputy AG St. John to cease and desist from referring to the circuit court as an "inferior court." The circuit court's function is different; it is not "inferior." And indeed the expression "inferior court" is plucked from federal law — which has no bearing on the cases at bar — where it appears in the federal Constitution. In fact, as this space has pointed out previously, despite the U.S. Constitution's reference to "inferior courts" which may be created from time to time by the Congress, the Article III judicial power inheres equally among the United States Supreme Court, the United States Courts of Appeal, and the United States District Courts (the parallel entities to the State circuit courts). Shirley is the best.

St. John, like many a right-wing ideologue, is a devotee of ad hominem.

Justice Prosser on savagery and distaste

From the archives:

The Allen motion ... has been followed by nine additional recusal motions against members of this court [seven of which are "against" Gableman]. The Wisconsin State Public Defender's office has invited the entire defense bar to file recusal motions against [Gableman] in criminal cases. The number and savagery of these motions is unprecedented and amounts to a frontal assault on the court. The court should have denied Allen's motion quickly, without comment. This would have avoided exposing controversy within the court.

It's always kind of bugged me that Justice Prosser viewed recusal motions — which are sheafs of paper filed with the court that maybe 50 people in the entire State of Wisconsin read — seeking Gableman's standing aside from certain cases as "savagery," whereas Gableman's notorious 2008 television ad attacking former Justice Louis Butler, which truly was savagery, was merely "distasteful" to Justice Prosser.

Distasteful: like a William Rehnquist shirt & tie combo.

At a candidate forum recently, Prosser said people need to "get over" the Gableman debacle. Given that Gableman subsequently through his agent defamed every attorney in the State who ever handled a criminal defense case,* I don't think that's going to happen, ever.

And I fail to understand how Prosser can demand that his opponent, JoAnne Kloppenburg, condemn a third-party's ad attacking him, while his own public reaction to Gableman's unethical behavior has been decidedly lukewarm and defensive. That's a tad double standard-ish.

* And offended all the others who respect the rule of law, including Justice N. Patrick Crooks, who was moved by Gableman's lawyer's relentless calumny to reconsider his position on the recusal motion.

That was among the worst lawyering this observer has ever seen.

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.

Prosser allies admit court is "pro-business"

As the Brew City Brawler perceptively discovers today.

When one considers that most of the decisions in the report the Brawler is discussing reduce to "Injured Plaintiff v. Business," the Wisconsin Civil Justice Council's advocacy is troubling, as it suggests its endorsement of Justice Prosser is based on an assumption that he has already prejudged future cases in favor of the latter adversaries.

In fact the first person to reject it should be Justice Prosser.

It's also notable that the very first decisions the WCJC cites, 2009's Horst v. Deere and its counterpart Godoy v. E.I. DuPont, contain writings either authored or joined by Justice Prosser openly lobbying for a sea change to long-accepted Wisconsin products liability law.

And they aren't making recommendations to the State legislature, as is occasionally the case with the court's opinions. Rather, the so-called conservative justices want the court itself to effectuate a radical alteration in the law despite — as Justice Crooks smartly notes — neither party to either case urging the adoption of the novel doctrine which — not coincidentally — appears in a treatise prepared by conservative academics,* the Restatement (Third) of Torts.

In different circumstances, this is what political conservatives denounce as "judicial fiat." Not that anybody should expect philosophical consistency from them. They're simply opportunists.

Who knows why they just can't admit that; it's as plain as can be.

* Principally Aaron Twerski, a distinguished Marquette Law alumnus.

Wisconsin Supreme Court quote of the day

Justice N. Patrick Crooks, 08/05/10:

I don't think that the Gableman decision provided a final resolution of the charges that were brought by the [Wisconsin Judicial Commission] and that are pending against Justice Gableman. Why do I say that? Well, I say that because, if you look closely — and I'm sure you have — at what the Judicial Commission did, they did not dismiss the charges against Justice Gableman. They did not do what several of us suggested was appropriate and request a jury trial in regard to those issues. Rather, what they did was suspend the prosecution. And I think that that provides an opportunity for the legislature to act in regard to the appropriate procedure. I certainly think that the allegations against Justice Ziegler led to a final resolution. But I don't see a final resolution with regard to the situation with Justice Gableman. And I think I have to bring that to the committee and that's where Justice Roggensack and I disagree.

What happened is that in front of the panel, the three-judge panel, Justice Gableman through his attorney brought a motion for summary judgment, basically asking that the charges against Justice Gableman be dismissed. The three-judge panel held oral arguments in regard to that motion for summary judgment. And their recommendation to the court was that we should grant that motion for summary judgment. So what comes to us, in my view and the view of the colleagues that have sided with me was pure and simply, we're looking again now at that recommendation for a grant of summary judgment. Summary judgment was not granted. As you know, we split 3-3. The division, in my opinion, caused a deadlock. Summary judgment was not granted. It certainly therefore failed, in terms of the request that summary judgment be granted.

Now, what normally happens — and bear with me for a minute — normally what happens if you're in a civil court situation — and by the way as you know the Judicial Commission, the rules and the statutes in regard to the Judicial Commission talk about operating under the civil rules. But what happens in a normal situation where someone brings a motion for summary judgment and the summary judgment motion is not granted, or [is] denied, or fails, is there's a trial. And three of us, looking at the statutes, looking at the interplay of the statutes, felt that it was appropriate for the Judicial Commission to go back to the point where they'd made a determination of probable cause, which I think they made probably about a year-and-a-half ago, and at that point, take the other route.

The route that they took at the time was the three-judge panel. The three-judge panel approach didn't resolve this issue. And so the other approach that's available, in our opinion, under the statutes, was the jury trial. And we suggested strongly to the Judicial Commission that they take that route. Now, the Judicial Commission, in the statement that they issued saying that they were suspending prosecution of the matter, indicated they felt there was a need for clarification in regard to the statutes. In other words, they didn't think that the procedure was as clear-cut as they would have liked it to have been.

And I will just tell you, speaking not only for myself but I think clearly for the Chief Justice and for Justice Bradley, we certainly would have no objection if this committee, and ultimately the legislature, were to attempt to clarify to the extent desired by the Judicial Commission. I don't think that's necessary, but I certainly don't object to it.

Sounds familiar.

I wonder if our friend professor of law Richard Esenberg took the opportunity to also instruct Justice Crooks, who has been a trial and appellate judge for 34 years, that his and the two other Justices' view of the case's procedural posture is informed merely by "a reference to horn book Civil Procedure" which "does not cut it here." I doubt it.

Wisconsin's conservative activist justices

Concludes Wisconsin Supreme Court Justice David Prosser:

[T]he court clearly has jurisdiction to take all actions necessary to consider whether to exercise its original jurisdiction over the substance of the matter. Wis. Const. Art. VII, § 3 (may hear original actions and proceedings) ...

Emphasis added.

What the Wisconsin constitution says is:

The supreme court has appellate jurisdiction over all courts and may hear original actions and proceedings. The supreme court may issue all writs necessary in aid of its jurisdiction.

An original action is one filed directly to the Supreme Court. Original actions are exceptional to the Supreme Court's primary constitutional roles as a court of appeals and as the superintendent of lower courts. If and when the Supreme Court accepts an original action, it has "found" that exceptional original jurisdiction.

In the present case, the Supreme Court has yet to find original jurisdiction. Nevertheless, last Friday the court issued a writ of injunction against the defendants, who comprise an executive branch agency of government, barring them and it from enforcing a rule that has enjoyed at least the tacit approval of the legislative branch.

So, does that writ of injunction fall within the constitutional purview described by "in aid of [the court's] jurisdiction" where the court hasn't even taken jurisdiction of the case?

Justices Prosser and Gableman seem to think so, although they were inspired to rewrite the State constitution — "all writs necessary" becomes "all actions necessary" and, most significantly, "in aid of its jurisdiction" becomes "whether to exercise its jurisdiction" — in order to judicially reach across both separation of powers divides.

Those are quite expansive readings, which judicial conservatives otherwise claim to eschew on judicially conservative principles.

And the two conservative justices argue that because the legislature has authorized the court by statute to order (only) legal briefing and argument before it decides to find original jurisdiction, that such orders are the functional equivalent of ordering a writ of injunction.

But an injunction is a legal remedy that provides relief to a party, a different category from orders the court might issue to the parties to help facilitate the court's understanding of the facts and law at issue in the case, which are all that the statute specifically authorizes.

Is this writ of injunction "in aid of" jurisdiction the court has yet to even exercise? Is the condition of still deciding whether to exercise jurisdiction the same thing as actually exercising jurisdiction?

Justices Prosser and Gableman say yes, but don't — imho — explain why very convincingly.* Justices Roggensack and Ziegler say yes as well, but don't join Justice Prosser's justification, giving none.

It's not an easy question, and the Wisconsin constitutional language "in aid of" jurisdiction doesn't seem to so easily or readily translate to the judicially created language "whether to exercise" jurisdiction.

At least, it doesn't translate so well for the purposes of this particular writ of injunction which, as Justice Bradley in dissent (joined by Chief Justice Abrahamson and Justice Crooks) observes, was ordered "even though the petitioners have not requested it."**

* e.g., Justice Prosser construes a statute designed to grant a civil right to citizens as instead the granting of power to the judiciary. Such a reading is no hallmark of the qualities of judicial modesty and restraint for which conservative judges are often applauded.

Additionally, Justice Prosser cites two prior Wisconsin cases for support: One where an injunction was granted in advance of the court finding jurisdiction, and one where an injunction was denied in advance of the court finding jurisdiction (but that court issued a variety of different orders other than injunctive relief to a party).

In the former case, the request for injunctive relief was made as a separate filing from the petitioner's request for original jurisdiction, unlike the present "in the alternative" situation (see ** below).

Nor does that case contain any discussion of the "in aid of" provision in the constitution nor whether the writ of injunction issued was in conformance with the constitutional language. So in effect Justice Prosser's citation stands only for the proposition, 'We did it once before.' Associate Justice Clarence Thomas, for one, would likely never abide with such an unqualified reliance on stare decisis.

** The petitioners did request it, but only "[i]n the alternative" to their primary demands, which are that the Supreme Court find original jurisdiction to accept the case and then pronounce the Government Accountability Board's rule unconstitutional.

Therefore if the Wisconsin Supreme Court does decide to find original jurisdiction sometime next month, the court will have granted both of what were presented as two "alternative" requests.

And my own inner strict constructionist is telling me now that "alternative" means "either one or the other" and it's also reminding me that the logical operator "or" can rarely be mistaken for "and."

Wisconsin Supreme Court quote of the day

"The matter is not dismissed." — Justice N. Patrick Crooks

That is correct.