Kelda Helen Roys et al letter to Mike Huebsch

Dear Sec. Huebsch:

The executive branch may not act as a gatekeeper to determine which speech or speakers are permissible, which should be allowed only with fees, or which may use public space.

Well stated.

Also, beets, the vegetable.

Grothman says new Huebsch policy "makes sense"

Which is your pretty much ironclad affirmation that it doesn't.

I mean, who ever heard of getting backcharged for free speech.

Wisconsin is still in America, isn't it?

Incidentally, Huebsch works for the governor who told Fake Dave Koch he thought about sending hired goons to disrupt peaceful protesters.

Do you live in fear, Jeff Fitzgerald?

In this video clip, Wisconsin Assembly Speaker Jeff Fitzgerald explains why allowing handguns inside the State Capitol is an awesome plan:

I would rather have law abiding citizens that go through a course be able to protect themselves than just have somebody up in the gallery that would be able to do currently what they are. We've heard from the other side of the aisle they want this building to be open and for the public to be there so if that's the case we also want people to be able to come in and protect themselves.

Protect themselves from what, he won't say. And what the people in the gallery are doing currently is holding small signs bearing text from the Constitution. So CCW is for people to protect themselves against that, apparently. Therefore does the Second Amendment guarantee you may wander around the Capitol building carrying a concealed, loaded handgun but not one whose barrel is inscribed with the First Amendment.

Jeff Fitzgerald's illogic is emblematic of conservative Republicans' attempt to accurately characterize the people of Madison: the WISGOP can't decide whether their adversaries are pot smoking hippies or violent psychopaths. It depends what day it is, and which is more convenient.

Jeff Fitzgerald is currently running for the United States Senate where, it's true, he would make the complementary bookend to Ron Johnson.

h/t @Progress2day

Oh, and according to Department of Administration Secretary and sometime Royal Estimator of Damages Mike Huebsch, handguns are not allowed in State mental health facilities, so you can't carry where there are actual psychopaths, but only where there are GOP-fantasized ones.

Moreover, Mike Huebsch justifies the new weapons policy by pointing at Wisconsin's "strong hunting culture and sporting heritage." I suspect most places share those traditions, but what they have to do with concealed, loaded handguns in public galleries at the State Capitol is anyone's guess.

While I admit to not fully comprehending the gun culture, I fail to see how armed citizens — complete with spare clips of ammo, as I read Secretary Huebsch's official directive — monitoring the deliberations of elected officials are a flattering reflection on responsible shooters.

Prosser's conduct: Next steps

One Wisconsin Now is filing an open records request to obtain any written and electronic communications between the four conservative justices, David Prosser, Mike Gableman, Annette Ziegler and Patience Roggensack, and Scott Walker's office, the office of Mike Huebsch, and Scott and Jeff Fitzgeralds' offices.

You can visit the link to chip in a few bucks.

Walker wasn't a named party to the so-called "supervisory/original" action that the Supreme Court heard and decided but Deputy Attorney General Kevin St. John admitted — reluctantly — under questioning from the Chief Justice that it was indeed Scott Walker who instigated the petition. Mike Huebsch is Walker's Secretary of Administration who made the notorious estimate of $7.5 million to repair "damage" to the State Capitol building in the wake of demonstrations in February and March.

The actual figure turned out to be just over 100 grand, and even that included for repairs to existing wear and tear from years gone by, some of which was caused by people in wheelchairs. Assembly Speaker Jeff Fitzgerald, brother of Scott, is reportedly running for the U.S. Senate.

At least, that's what the Wausau Daily Herald editorial board said Fitzgerald told them. But then a spokesman for Fitzgerald said it would be against the law for Fitzgerald to say that. Not like the law prevented WISGOP legislative activities in the past, which the four "conservatives" on the Wisconsin Supreme Court said was perfectly fine with them.

Huebsch v. Dane County: It could have been worse

A revelation:

There was some internal disagreement among the four people who wanted to [vacate Judge Sumi's decision]. Some of the people thought that the order should say that the bill that was the subject of this order had been published. My view was, 'No, it has not been published.' And in that, the three dissenters agreed with me. — Wisconsin Supreme Court Justice David Prosser

Which is interesting because it was my understanding that the near-unanimity of informed commentary — including, we now learn, Justice Prosser's — agreed that 2011 Wisconsin Act 10 had not been published, in the sense required by both the State constitution and the State statutes. There is no discussion of this question of publication in either the court's unsigned order or Justice Prosser's concurring opinion.

There is this, from Chief Justice Shirley Abrahamson's dissent:

¶111 The order and concurrence fail to examine carefully the arguments of the Secretary of State about the respective roles of the Secretary of State and the Legislative Reference Bureau in the publication of legislative acts, the printing of notice in the official state newspaper, and the effective date of a statute. See Wis. Stat. §§ 14.38(10), 35.095(3)(b), 991.11.

Indeed, between the two cases that the Huebsch majority claimed were supposed to have controlled Judge Sumi's deliberations — as opposed to their being controlled by, you know, the plain text of the Open Meetings Law — one, Goodland v. Zimmerman, was about an unpublished bill, and the other, La Follette v. Stitt, was about a published bill. Nevertheless, wrote Justice Prosser, "In my view, this case is governed by Stitt."* On the other hand, the court's unsigned order relied primarily on Goodland.

That's exactly the opposite of what an observer might expect, in terms of judicial precedent relied upon being "on point," as they say in the biz.

All of which, it seems to me, serves to support the dissenters' position that the case merited either further argument or at least further explication by the four conservative justices who made up the court's majority. I would like to have seen the reasoning of "some of the people" who thought 2011 Wisconsin Act 10 was published and not just printed. Because that would have taken some serious contortions beyond what the court did perform, which was to manufacture a unique form of judicial branch authority not bestowed by the State constitution.

And, while Justice Prosser claims that Assembly Leader Jeff Fitzgerald's public exhortation to the court to produce a decision in keeping with the Republican-controlled legislature's deadline was "separate" from the court's internal timetable, he sure got pretty excited when he learned that the WISGOP's requirements were in danger of not being satisfied.

One thing's for certain, this is an extremely politicized court.

* Then-Republican legislator David Prosser filed an amicus brief in Stitt.

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.

Two temper tantrums and a microphone

In this Fox 6 Exclusive.

"And stormed into his chambers."

It bears repeating that three of the four justices who formed the majority in Huebsch v. Dane County Circuit Court have had ethics complaints filed or an ethics investigation undertaken against them.

Justice Ziegler received a public reprimand from the Supreme Court for failing to disclose her financial relationships to parties before the court when she was a circuit judge in Washington County. Gableman was charged with lying about his political opponent in the 2008 election that placed him on the bench. While the Supreme Court split on Gableman's fate, he was found by a three-man panel of appeals court judges to have violated two provisions of the Wisconsin Code of Judicial Ethics. Gableman failed to win dismissal of the Judicial Commission's complaint against him, and it remains pending.* Now, the Prosser investigation.

It also bears repeating that these same judges preside over the ethical responsibilities and behavior of the State of Wisconsin's attorneys.

Some may recall the celebrated case of Beams v. Motes.

* Partly because Wisconsin's statutory framework dealing with ethical violation prosecutions is incoherent. They were supposed to fix this.

Now it needs fixing more than ever.

Your Wisconsin Republicans in the news

Johnson calls on Weiner to resign — actual Associated Press headline

First up, embattled State Senator Dan Kapanke is a comical liar. The absurd claims of Wisconsin Secretary of Building Maintenance Mike Huebsch were thoroughly debunked ages ago, yet Kapanke repeats the lies to members of his Tea Party constituency, which is even insulting to the intelligence of the Tea Party constituency, because at least the Tea Party constituency pays attention and follows the political news.

Next, James Troupis, Republican lawyer-for-hire, participates in a panel devoted to restoring the appearance of civility on the Supreme Court, reports @WisPolitics. Troupis filed a frivolous suit in Oconto County he had no chance of winning, and then mischaracterized the court's order in a legal memorandum to Republican State Senator Scott Fitzgerald, who Troupis & Friends advised to capture a seven-months-pregnant woman and have her "carried ... feet first" into the Capitol building. Then Troupis billed the State $27K for his and his associates' labors.*

Incidentally Fitzgerald did indeed issue 14 ersatz "arrest warrants" pursuant to Troupis's legal advice, which none other than Dan Kapanke endorsed. No word on whether Kapanke voiced concerns over scuffing a limestone pier with the prone body of a seven-months-pregnant woman.

Finally our old pal Oshkosh millionaire Ron Johnson, who's raised some eyebrows with millions in "virtually interest free" loans Ron Johnson's company made to Ron Johnson, but before Ron Johnson decided to run for the U.S. Senate. Johnson got famous last year when it was learned he'd secured millions more in government-underwritten bonds, which also guaranteed Ron Johnson favorably below-market interest rates.

Then Ron Johnson got more famous as a gigantic hypocrite when he attacked his political opponent, Sen. Russ Feingold, for favoring precisely the same type of government largesse from which Johnson's plastics company benefited, and within precisely the same industry as Johnson's.

(Johnson's staff now includes erstwhile JRN calumnist Patrick McIlheran.)

This has been your Wisconsin Republicans in the news.

Boehnerus: Ohio Republican who "tested positive for Viagra" in the news

Visit the Archiv:
Huebsch
Troupis
Industrial revenue bonds

* Never did find out what the heck's the difference between a $290-an-hour Republican lawyer and a $295-an-hour Republican lawyer.

Daniel is Suhr tenacious, I'll give him that much

[Good grief man.]

Mr. Suhr, thank you for taking the time. I must say I have always found kibbutzing with you on the internets a source of considerable amusement and I am sincerely grateful for that as well.

However, please have a look one more time at § 809.71, which refers back to and incorporates by that reference § 809.51. A person seeking a supervisory writ under § 809.71 (e.g., petitioner Mike Huebsch [a.k.a. Scott Walker] who, incidentally, ended up getting something he never sought by dint of the punctuational jurisdiction invented by Justice/Gableman) must file "in accordance with s. 809.51." Thus does "the court" in § 809.51 mean the Supreme Court, in perfect consonance with the wise and premonitory guidance set forth in § 809.01(4).

So to continue to insist, as you are doing above, that "the court" in § 809.51 can mean "only" the Court of Appeals is, as the saying goes, absurd. Again: I am not misapplying § 809.51 but rather reading it in its alternate context, following the direction of § 809.71.

The only thing in § 809.51 that § 809.71 does not incorporate by reference is, obviously, the former's language, "or its original jurisdiction," which is where your superfluity analysis would apply, as the Supreme Court's original jurisdiction is addressed separately, in § 809.70.

And these have been my contentions from the outset: that original and supervisory jurisdiction are separate and distinct forms of judicial authority, and that there is no constitutional basis for Justice/Gableman's creation of an alternatively convenient source of judicial power by forward slash.

(Setting amusement aside for a moment, your main post here at the Marquette University Law School faculty blog embodies an unwarranted criticism of my writing and I can only hope that your readers continue on throughout this comments thread for the fuller explication. However, experience teaches me that that is not something upon which I can depend, if you're picking up what I'm throwing down.)

By the way, a not dissimilar question of construction arose at the time the Walker administration attempted vainly to claim publication of 2011 Wisconsin Act 10 while publication was temporarily enjoined. A provision might have two different meanings, or two different applications, depending upon how it may be incorporated by reference into other statutory provisions.

You can read all about that little brouhaha at my own wildly popular blog, illusory tenant, in a post entitled, "Wisconsin statutes, a couple three of them," of March 26, 2011. Or, if you prefer, Prof. Fallone's compelling epistle of March 28, at this present location, [*] which covers much of the same ground (as Prof. Fallone was most generous to acknowledge).

Have a good one, Mr. Suhr, and keep those FedSoc recruits coming.

* That is, the Marquette University Law School faculty blog, to whence the above comment was submitted. Should be posted in a day or two.

Fitzgerald on Huebsch v. Dane County Cir. Ct.

Said the law breaker of the law inventor:

The Supreme Court is crazier than the Legislature apparently.

— Scott Fitzgerald

h/t Mary Spicuzza.

"In turbulent times, courts are expected to act with fairness and objectivity. ... They should not insert themselves into controversies or exacerbate existing tensions." — Prosser, J., choking concurring.

A corporation, but not a Gableman, is a person

CAPITOL KAOS

A person may request the supreme court to take jurisdiction of an original action by filing a petition which may be supported by a memorandum. — Wis. Stat. § 809.70

Bet you didn't know that person could be Mike Gableman.

Until yesterday, to be sure, when neither did anybody else.

A person may request the court to exercise its supervisory jurisdiction or its original jurisdiction to issue a prerogative writ over a court and the presiding judge, or other person or body, by filing a petition and supporting memorandum. — § 809.51

That is, § 809.70 or § 809.71. Either one or the other. Not and. I refer the reader to the small catalog of propositional operators contained in any introductory text on logic, beginning from Aristotle's (c. 360 BCE).

Now Huebsch (by his counsel the Department of Justice) is a person:

PETITION FOR SUPERVISORY WRIT PURSUANT TO WIS. STAT.
§ 809.71 — State ex rel. Michael D. Huebsch, 04.07.2011

Yet the following appeared at 4:45 p.m. on June 14, in an unsigned order of the court but reputedly the handiwork of Mike Gableman:

On June 6, 2011, this court ... heard argument addressing whether the court should accept either the certification or the petition for supervisory/original jurisdiction or both; the court also heard argument on the merits of the pending matters.

The certification was a separate case, and was dismissed. The forward slash conjoining 'supervisory' to 'original' is a fabrication from whole cloth. So-called conservative jurisprudence by typographical insertion.

In the Wisconsin statutes, the distinction between the court's supervisory and original jurisdictions is codified by their separate numberings:
§ 809.70 and § 809.71. The Department of Justice chose the latter.

It would not have occurred to the Department of Justice to petition the court to take jurisdiction of an original action because Ozanne v. Fitzgerald could not, obviously, be an original action for the purposes of the Supreme Court's original jurisdiction. Hence the supervisory petition.

¶7 This court has granted the petition for an original action ...

No such petition existed, until the Gableman court manufactured it.

WMC's Mike Gableman, who a three-appellate-judge panel found in 2009 to have violated two separate provisions of the Wisconsin code of judicial ethics (Gableman was a judge on an "inferior court" — as Kevin St. John would have it — at the time) campaigned on a political platform of "strict constructionism" and the faithful adherence to legal texts.

Evidently those were lies as well.

And this is not the first time that Gableman has conjured a creative interpretation of the Supreme Court's jurisdictional authorities. The present instance is not of judicial activism, but of judicial arrogance.

Ironically, Gableman's cohort Justice Prosser purports to justify the court's exercising original jurisdiction by mysterious reference to the State constitution, according to an apparently broad reading of that document, or precisely that manner of reading denied to the people of Wisconsin, who sought only a reasonable — indeed, a practically de minimis — access to the legislative activities of their representatives.

The Republican legislative leaders betrayed even that.

Of course the largest irony of all is that the Gableman court attempts to validate its fiat on separation of powers grounds, but yesterday's decree indicates nothing except an amalgamation of partisan, political powers.

This space will return at the end of the month, fully recharged.

Hello again, Huebsch

How was your weekend? Mine was great, thanks fer askin'!

I see from the old Google Analytics on the wall we had a couple of visits again over the weekend from service provider "state of wi dept. of administration." Maybe we'll start a regular feature: "Huebsch Hitsh."

Last week we enjoyed 256 visits. Amazing they get any work done.

Journal-Sentinel encouraged by Walker budget

Even as, the Journal Communications, Inc. daily organ admits, 'the burden of this budget will most likely fall heaviest on children, workers, poor women, and municipalities.' Meanwhile the Journal-Sentinel reports that "what will happen with the collective bargaining measure is still unknown." But yesterday Journal-Communications, Inc. marquee wing-nut Charlie Sykes told his ironic and non-ironic viewers — assuming Charlie Sykes even has any of the latter viewers — that the Wisconsin Supreme Court will exercise its supervisory power over Dane County Circuit Judge Maryann Sumi this morning.* Which would be great timing because Secretary of Capitol Building Maintenance Supervision Mike Huebsch says there will be thousands of protesters in Madison today.

But obviously Charlie Sykes has no idea why the high court would so act.

* The Supreme Court announced on Friday that it will release one opinion tomorrow, June 14, but it isn't "In re Petition of Scott Walker" either.

Scott Walker and the separation of WISGOP powers

Advertisement: Please visit the CAPITOL KAOS archives

[Wis. Stat. Sec.] 165.25(1) [The department of justice shall] appear for the state and prosecute or defend all actions and proceedings, civil or criminal, in the court of appeals and the supreme court, in which the state is interested or a party, and attend to and prosecute or defend all civil cases sent or remanded to any circuit court in which the state is a party.

165.25(1m) If requested by the governor or either house of the legislature, appear for and represent the state, any state department, agency, official, employee or agent, whether required to appear as a party or witness in any civil or criminal matter, and prosecute or defend in any court or before any officer, any cause or matter, civil or criminal, in which the state or the people of this state may be interested.

Here's another interesting and thus far overlooked tidbit from last Monday's marathon session of the Wisconsin Supreme Court, wherein Deputy Attorney General Kevin St. John concedes directly to the Chief Justice that the Department of Justice is appearing not on behalf of Secretary of Capitol Building Maintenance Mike Huebsch, but on the explicit direction of the governor, Scott Walker. And what Walker is complaining about is, ironically, a separation of powers violation.

During St. John's oral presentation, the Chief Justice is engaging the lawyer on some procedural posturings. Recall that while the hearings were underway in Dane County Circuit Judge Maryann Sumi's court in Ozanne v. Fitzgerald, Judge Sumi issued a temporary restraining order. A TRO is not a "final judgment" and the difference between a TRO and a final judgment is determinative of how Scott Fitzgerald and the other defendants may attack a judge's disposition, be it final or temporary.

In Wisconsin there exists a right to appeal final judgments, but if the defendant Republican legislators here wish to attack the TRO, they must be granted permission to do so by the court of appeals. Thus did the Department of Justice file a motion for permission to appeal a non-final order (the TRO) on March 21 with the District IV Court of Appeals.

The court of appeals declined to entertain that motion, but rather certified ("passed on," or "kicked upstairs," in the vernacular) the DOJ's petition to the Supreme Court. The Supreme Court announced nothing further with regard to that petition until June 3, when it issued an order consolidating it with the DOJ's petition for a supervisory writ, as in the interim between scheduling oral arguments on whether to entertain the supervisory writ, Judge Sumi did indeed issue a final judgment.

So the Chief Justice is wondering about from whence comes the DOJ's authority to bring the petition for a supervisory writ (a writ is a court order, and in this case the DOJ is seeking an order vacating Judge Sumi's disposition based on the Supreme Court's supervisory authority over the circuit courts). The petition for a supervisory writ was filed in the name of Mike Huebsch, but what the record transcribed below reveals is that the order came directly from Governor Walker himself, something Mr. St. John appears to be distinctly uncomfortable with admitting.

The exchange between the Chief Justice and the deputy AG, related to the foregoing issues of who gets to do what and when begins at 00:43:10 of Wisconsin Eye's video of the oral arguments and the CJ gets to the Walker's Point at 00:45:10. The ellipses are pauses, not edits.

CJA: Under what authority does the State bring this proceeding?

KSJ: The State brings this proceeding under [Wis. Stat. Sec. 165.25(1)(m) — see above].

CJA: 165 ... yes.

KSJ: 165.25, sub. 1m.

CJA: Point 25, one ...

KSJ: 1m.

CJA: What does that say, counsel?

KSJ: That provides, that says that the attorney general and I ... quote the statute [KSJ retrieves Volume 3 of the Wisconsin Statutes and Annotations] ...

CJA: 165 ... 25 ...

KSJ: It needs to be read in conjunction with sub. 1, but 1m provides that if requested by the governor or either house of the legislature ...

CJA: Okay.

KSJ: ... may ...

CJA: Did the governor make any request?

KSJ: Yes.

CJA: Is that on record?

KSJ: It's not part of the record for petition [for a supervisory writ]. The State appears in many actions at the request of the governor or on the legislature and wouldn't file that with the court. We'd be happy to do so if that were required.

CJA: Therefore, and represent the State. Okay, the court will take that under advisement. Is that what you're relying on, 'If requested by the governor, appear for and represent the State'?

KSJ: Mm hmm. In any matter in which the State or the people of this State may be interested. There's been a determination made ...

CJA: Oh wait, what about the sentence, "whether required to appear as a party or witness"? That clause.

KSJ: Mm hmm. In any ...

CJA: Well ...

KSJ: And prosecute or defend ...

CJA: Are you required to appear here as a party? Here?

KSJ: Uh, there's no requirement ...

CJA: Okay. So you're going on to, "and prosecute in any court," right?

KSJ: That's correct.

CJA: "In which the State or the people may be interested."

KSJ: That's correct.

CJA: Okay. This is one of the things that is ... and on page four of your Ozanne you rely on 165.25, but there you say only that the AG decides whether what's the best interest of the State so now you're relying on the governor, is that it?

KSJ: There is authority in this case from the governor, there is also authority in this court's precedent that says that the attorney general may appear before this court with or without the governor's approval to advance an interest of the State.

He goes on. But he's already admitted to the Chief Justice, who is more interested in the express language of the State statutes, that in this case what he's relying on is a request from the governor, Scott Walker.

So you have Republican Scott Walker, the chief executive branch officer, petitioning the Republican-controlled Supreme Court,* the top entity within the judicial branch, to in effect discipline a lower court because it ruled against his Republican pals and allies in the legislative branch. And what Walker is complaining about ultimately is a violation of the doctrine of constitutional separation of powers. That is one not-too-subtle irony.

Deputy AG St. John's pursed "mm hmms" indicate he was none too comfortable with the Chief Justice's line of inquiry. Witnesses at trial who answer "mm hmm" rather than "yes" are often admonished by the court for not speaking up clearly and affirmatively. I wonder why St. John was so reticent at providing this information, that the Department of Justice is acting on the direct order of Governor Scott Walker.

Because the named petitioner clearly has no idea what's going on.

Since Monday a slew of additional documents were filed with the State Supreme Court, but this space doesn't know whether Walker's directive to the DOJ is among them. It may well be quite an edifying read.

* Let's dispense with the "nonpartisan" façade for a moment. Everybody knows how many millions of dollars (and thousands of logically fallacious and unethical teevee ads) Republican-affiliated outfits have produced and spent to ensure and protect the current make-up of the court.

What Wis. Admin Sec. Mike Huebsch believes

Simply amazing:

"The court can remove the temporary restraining order, say the law is in effect and allow the Department of Administration to implement," WI Secretary of Administration Mike Huebsch said.

There is no temporary restraining order. There is a final judgment. A final judgment needs to be appealed, and there is no appeal pending.

Does Huebsch not even know why he filed for a supervisory writ instead?

This is a final Judgment for purposes of appeal as to the validity of the actions taken on March 9, 2011. This Judgment supersedes previous orders made in this case. — BY THE COURT [05/26/11]

And has Huebsch even read the decisions or orders he's challenging?

At least he admits his case rests on "philosophical issues," not the law.

If [the Wisconsin Supreme Court doesn't] act quickly, Huebsch said, the Legislature is prepared to put the plan in the state budget and pass it before the end of the month.

Well then, Just Do It [/Mike swoosh].

Shorter Scott Walker v. Dane County Cir. Ct.

From here:

[S]ix hours of oral argument before the Wisconsin Supreme Court has failed to identify any factual or legal finding of the circuit court that was plainly wrong. — Marquette law prof Ed Fallone

Exactly so. And indeed the closest any of the justices came to implying that Dane County Circuit Judge Maryann Sumi had done anything even approaching abusing her discretion came from Justice Annette Zeigler, who asserted elements of Judge Sumi's disposition were "unusual."

Well, it's an unusual case. The disposition is straightforward as can be.

Hardly grounds for the Supreme Court to exercise its supervisory authority over the trial court. Mr. Huebsch's petition* must be denied.

* It's actually Scott Walker's petition, as we shall see momentarily.

Milwaukee Journal-Sentinel editorial "bizarre"

Says it — or they, or she, or he — of this week's Wisconsin Supreme Court marathon oral arguments, characterizing as among Governor Scott Walker's lawyer's various claims and assertions:

... the bizarre argument articulated Monday by Deputy Attorney General Kevin St. John, who said during a state Supreme Court hearing that courts could not invalidate a statute because lawmakers violated the open meetings law.

While St. John's hour-long ramble was indeed occasionally bizarre to the extent the ethically-challenged judge Mike Gableman had several times interruptingly to leap from the bench — albeit not literally — to come to the attorney's assistance, the argument St. John was attempting to make is that courts could not invalidate a bill until it had become law.

Moreover, St. John is in denial over whether Republican lawmakers violated the Open Meetings Law (which they very clearly did: one of St. John's own colleagues admitted it on the record, leaving the trial court no choice but to enjoin the WISGOP shenanigans). What is bizarre is the Journal-Sentinel editorial board's reliance on the organ's own report of the proceedings, which claims Dane County Circuit Judge Maryann Sumi "was allowed" to file a brief in an action brought by (purportedly) Walker's right-hand building maintenance supervisor Mike Huebsch.

"Normally, judges don't file briefs in cases with the Supreme Court," reports the J-S, which is true as a general matter, I suppose, except in this case, the Dane County Circuit Court, Judge Sumi presiding, was named as a party to the action,* so it would be abnormal if a party to an appellate court case didn't file a brief. But the facts of the matter — which bear repeating once again — are that Judge Sumi was ordered to file the brief, pursuant to Wis. Stat. § 809.51(2) and pursuant to the Supreme Court's order of May 4, 2011. Those are just the plain facts.

And those would be kind of important points.

"Normally, Wisconsin circuit court judges don't flagrantly disobey orders of the Wisconsin Supreme Court," is more like it, and accurate.

* "Respondent," to be exact, which of itself should be self-explanatory.

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.

Wisconsin letter of the day

From Lester Pines, counsel for State Sen. Mark Miller, to the clerk of the Wisconsin Supreme Court, blasting Deputy Attorney General Kevin St. John for coming "perilously close" to violating SCR 20:8.2* (.pdf; 3 pgs.).

Meanwhile the Supreme Court's docket still shows oral argument scheduled for Monday, June 6, related to Scott Walker's building maintenance supervisor Mike Huebsch's petition for a supervisory writ, a petition grounded in challenging a temporary injunction that doesn't even exist any more (it was superseded by Sumi's final judgment).

Fitz Van Walker's multi-ring circus gets more ridiculous every day.

It's gotten so bad that our old friend perfesser to the wing-nuts Rick Esenberg, at the Marquette law school's faculty blog refers to "[t]he Zimmerman and Goodland cases" in support of his allegedly profound doctrinal claims, despite Goodland v. Zimmerman being one case.**

I guess when all you have is hand waving, inventing precedent works too.

And Journal Communications, Inc. loves the guy, of course.

It's comical.

* Supreme Court Rule 20:8.2: "A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge ... "

** Goodland v. Zimmerman is a 1943 decision of the Wisconsin Supreme Court. If the Open Meetings Law didn't contain eleventeen provisions expressly superseding the holding in Goodland, this case would be a slam dunk, and Judge Sumi would have ruled opposite to what she has done. What I find amusing is that so-called judicial conservatives (e.g., Rick Esenberg) now deriding Judge Sumi for following to the letter what the legislature has laid down instead of the holding of seven "black robed elites" in Goodland will just as facilely in different circumstances deride similarly situated judges for following judge-made doctrine instead of the clear directives of the democratically elected legislature. There are no judicial "principles" to so-called judicial conservatism. It is purely a matter of what is convenient under which circumstances that are most suitable for the furtherance of conservative political policy, in this case, the gutting of the collective bargaining rights of public employees.

Other examples, from the work of Justice Prosser, may be found here.

Conversely, Judge Sumi's reasoning is an example of what conservative jurisprudence is supposed to be. Which is why, if it does indeed come to pass that the "conservatives" on the Wisconsin Supreme Court do get around to reversing Judge Sumi, as is desperately pleaded for by the Fitz Van Walker regime and its disciples, that court's own reasoning cannot be anything other than tortured and circuitous by comparison to Judge Sumi's. And the attendant celebration by the disciples will be even sillier.