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.

Wisconsin Supreme Court schedules goat rodeo

SCOWI oral argument preview: Mike Gableman is "tireless, indefatigable and brilliant." — Justice David Prosser 04/18/11

In re: 2011AP000765-W and 2011AP000613-LV

This morning's line-up:

State ex rel Mike Huebsch: 50 minutes (Maria Lazar [?])
Dane County Circuit Court: 15 minutes (Dean Strang)
Dane County District Atty: 15 minutes (Ismail Ozanne)
State Rep. Peter Barca (D): 10 minutes (Bob Jambois*)
State Sen. Mark Miller (D): 10 minutes (Lester Pines)
Sec. of State Doug La Follette: 10 minutes (Roger Sage)
Huebsch rebuttal: 10 minutes [Misc. DOJ]

The festivities commence at 9:45 a.m., Central Standard Time.

Now maybe the Wisconsin Department of Justice will explain how and why Wisconsin's Open Meetings Law is unconstitutional, complete with citations to relevant 17th century English parliamentary common law.

Livetweeting (hopefully).

* Jambois should feature among the highlights.

eta 01: Deputy AG Kevin St. John appeared for State ex rel Huebsch and Dean Strang's law firm colleague Marie Stanton appeared for the Dane County Circuit Court (Judge Sumi). Those are all the attorneys the court heard from by 12:10 p.m. before adjourning for lunch until 1:30, so that's only two lawyers down and five to go. Gonna be a looong day.

Hard to say where things are going to shake out at this point but — and, real superficial observation here — the court's so-called conservatives appear to be more inclined to sympathize with the DOJ's demand for what is essentially judicial activism and legislating from the bench.

eta 02: "17th century English parliamentary common law." Think I was joking eh? St. John actually invoked it, without being prompted. It's supposed to override the laws of Wisconsin. This is how the DOJ argues.

Res ipsa loquitur.

Wing-nut law prof handicaps Kloppenburg

Jurisprudence alert

I now place the odds of [S. Ct. candidate JoAnne Kloppenburg] conceding without court action at less than 50/50.

Says William Jacobson. When last we encountered Prof. Jacobson, he was claiming Wisconsin Sec. of State Doug La Follette was "likely wrong" when the latter said 2011 Wisconsin Act 10 was not law (La Follette was entirely correct) and claiming the fellow in Buffalo, NY who rang up Scott Walker impersonating Tea Partying billionaire David Koch was guilty of a Wisconsin felony. Impressive track record.

Of course Jacobson doesn't bother contemplating what grounds Kloppenburg might have for a lawsuit.* That Kloppenburg will seek, through the courts, to "have the entire election thrown out" is the latest conservative Republican wet dream, popularized obviously by Journal Communications, Inc.'s marquee radio and teevee personality Charlie Sykes and his various ill-informed disciples for weeks now and most recently by our own local law-prof-to-the-wing-nuts Rick Esenberg. In former times I might have been surprised to see the latter embracing the speculative cacophony, but not any more.

Cut from the same cloth, the lot of 'em.

* The substance of his comment is to make fun of her name, which is apparently what passes for conservative legal scholarship these days.

Hamline law professor lectures Kloppenburg

In making this wild and baseless claim:

An expert in legal politics says AAG JoAnne Kloppenburg may have launched a recount of votes from the April 5 State Supreme Court race to ultimately sway the outcome of a legal challenge to Gov. Scott Walker's union reform efforts. David A. Schultz, a law professor at Hamline University in Minnesota, said Kloppenburg's recount in her contest against Justice David Prosser could be an attempt to stall matters until crucial issues come before the court. The next justice is scheduled to be sworn in August 1, but a protracted legal dispute could delay the winner from taking office.

Naturally the wing-nut elements, led as usual by Charlie Sykes, are citing to this thoroughly unsupported suggestion approvingly.

Because ridiculous conspiracy theories are their stock in trade and their foolishness knows no physical or psychological boundaries.

Only one very large problem: In 2001 Justice Prosser was elected to a 10-year term, which doesn't expire until July 31, 2011. In other words, Justice Prosser already "took office" ten years ago. Apparently the MN "expert in legal politics" is not aware Justice Prosser is an incumbent, a sitting member of the court that has been working and hearing oral arguments throughout the month of April. There is one petition before the court related to Gov. Scott Walker's budget bill shenanigans, filed on April 7, asking the court to invalidate the temporary restraining order issued by Judge Maryann Sumi.*

There is no law or rule that I'm aware of preventing the court from accepting the petition this afternoon, together with Justice Prosser's participation.** Yet here is a professor of law suggesting that an assistant attorney general is deliberately stalling the process of litigation through the appellate courts. It's a serious charge, made without a scintilla of evidence, and is especially irresponsible issuing from a professor of law. On the other hand, it is Hamline University.

That's Mike Gableman's alma mater.

* There is/was another that was kicked upstairs by the District IV Court of Appeals, but it was filed on behalf of Secretary of State Doug La Follette by the Department of Justice, whose ability to represent the interests of the named plaintiff has been questioned to the point of ineffective assistance of counsel thanks to the DoJ's performance in the aforementioned Dane County circuit court.

** Then-State assemblyman Prosser in 1983 filed an amicus brief in one of the cases that would play a defining role*** in the Supreme Court's review of Judge Sumi's disposition, but the brief is not directly related to the central question of whether the judicial branch may undertake to enforce constitutional and statutory provisions against the internal [sic] operations of the legislative branch.

Now that might be an interesting tidbit for a law professor to point out, but in fact it was this blog that did, nearly a month ago. We've since navigated the microfiche machine to obtain one of about three extant copies of the brief in the entire State of Wisconsin. So now you know just where to come for all yer law perfessin' requirements.

*** It's also manifestly unavailing to the Fitz Van Walker cause, IMO.