A couple of questions for Justice Pat Roggensack

Why hasn't anybody asked Justice Pat Roggensack these questions? They seem obvious to me, and I don't even live in Wisconsin any more.

1) Justice Roggensack, you wrote in the Milwaukee Journal Sentinel:

"[W]hen a citizen votes in a judicial election, he or she exercises a right guaranteed under the First Amendment of the United States Constitution."

The First Amendment — as you know — originally applied only to Congress. Since then the United States Supreme Court has held, by selective incorporation, that certain elements of the Bill of Rights apply to State governments, but the right to vote has never been incorporated through the First Amendment.

So according to what constitutional theory or legal reasoning did you reach the conclusion that the right to vote in State judicial elections is guaranteed by the First Amendment?*

2) Many observers attribute the authorship of the per curiam order in Ozanne v. Fitzgerald to you, Justice Roggensack. In that order the court devised what it called "supervisory/original jurisdiction."

a) How could the court invoke its original jurisdiction when in fact it was the third court to review the particulars of the case?

b) As for the court's supervisory (more accurately, its superintending) jurisdiction, less than one month after its order in Ozanne, you joined a majority opinion of the court which declared:

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

This seems like a clear directive, and provides the criteria that a court must find are satisfied before granting this "extraordinary remedy."

But there is neither any discussion — nor even a mention — in the court's Ozanne v. Fitzgerald order of Dane County Circuit Court Judge Maryann Sumi's having refused to perform her plain duty, nor is there any discussion or mention of Judge Sumi's having violated her plain duty.

So how do you square your July 14, 2011 directive with Ozanne?

It seems the citizens are lacking an important chain in your reasoning.

* There is no constitutional right to vote for federal judges.

Justice Roggensack is hardly a conservative judge

Once again, much is being made in the newspapers these days of the altercation which took place in the chambers of Wisconsin Supreme Court Justice Ann Walsh Bradley back in June, 2011.

One reason for that is because there is an impending general election* for the seat of incumbent Justice Patience Roggensack and another reason is that Justice Bradley removed herself last week from the case of Wisconsin Judicial Commission v. David T. Prosser, Jr.

It was an altercation that Justice Roggensack had "almost nothing to do with," says risibly lies one of the Milwaukee Journal Sentinel's several in-house right-wing Bradley (no relation) Foundation propagandists.

Unless authoring a meanspirited, lawless order and then leading her little posse of alleged "conservatives" into Justice Bradley's chambers to insist on its immediate publication to allay the concerns of Republican allies in the Wisconsin legislature counts as having "almost nothing to do with" the subsequent confrontation among justices.

Meanspirited in the sense that the order is practically a personal attack on Dane County Circuit Court Judge Maryann Sumi, in whose courtroom the Republican legislators' attorneys freely admitted they had violated both the Wisconsin statutes and the Wisconsin constitution.

Lawless in the sense that Justice Roggensack and her Republican pals invented a jurisidictional authority for the Wisconsin Supreme Court that not only is not found in the State constitution but is explicitly contraindicated in the rules of appellate procedure: There is no such thing as "supervisory/original jurisdiction." They represent separate grounds for a party having her case heard by the Supreme Court.

In fact, there is no such thing as "supervisory" jurisdiction among the Wisconsin Supreme Court's panoply of constitutional powers, but there is superintending jurisdiction. Therefore if Roggensack and her fellow Republicans wanted to dream up the law more accurately, they should have invented "superintending/original" jurisdiction.

Furthermore in Justice Roggensack's own granting of her motion for recusal, she cites a Wisconsin statute she apparently believes requires her recusal. Except the statute refers to "any civil or criminal action or proceeding," whereas WJC v. Prosser is neither a criminal nor a civil case, thus the statute upon which Roggensack depends is irrelevant.

And they call her a "conservative" judge? Hardly. To top it all off, the same alleged conservatives then utterly contradicted themselves.

Where has this been reported? Nowhere, except at this here space.

* The primary election is Tuesday, February 19.

The only conservative on that ticket is Ed Fallone.

Prof. Rick's Freud slipped here

Law professor returns to his eager defenses of Mike Gableman:

We might say that "free legal services' is — deliberately or accidentally — not a complete and accurate description of the free arrangement at issue.

We knew it was a free arrangement all along. It's pleasant to see Mike Gableman's stoutest cheerleader finally acknowledging that fact.

He goes on:

I am also confident that Justice Gableman understood the nature of the arguments being made for his recusal and, in fact, made clear that he based his decision on "the circumstances of the case ... and the submissions of the parties."

'Because he said so,' offers Prof. Rick of Gableman, who doesn't exactly enjoy a reputation for honesty, having been prosecuted by the Wisconsin Judicial Commission for lying about another judge's professional record.

If Prof. Rick is so confident now that Gableman "understood the nature of the arguments being made," where was his confidence that Gableman understood the procedural history of State v. Reuben Lee Mitchell?

If Prof. Rick's level of confidence in the latter equaled his present confidence in Gableman's profound understanding, then Prof. Rick would have to admit that Gableman knew full well that he was baldly lying during his political campaign in 2008. But you'll never hear that from Prof. Rick, whose own partisan expediencies regularly trump whatever pretense to principled scholarship he's apparently duped the Journal-Sentinel into accepting. That farce is worse than the sloppy writing.

Good for a laugh, at least.

Immigration quote of the day

Rick Esenberg, in the Milwaukee Journal-Sentinel:

"If you are not here illegally, you ought to go back."

This after criticizing the "incoherance" of the immigration debate.

I kid you not.

Journal-Sentinel photo caption of the day

[In this aerial photo] Gov. Scott Walker can be seen working the grill, just below the American flag.

What a guy.

Scott Walker's world's most expensive photocopying

Reports the Milwaukee Journal-Sentinel:

[Wisconsin governor Scott] Walker said he put money [$160,000] into the [criminal] defense fund so that he could provide thousands of documents to Milwaukee County District Attorney John Chisholm, who is heading the [criminal] investigation.

Walker also says he "will not use campaign funds to pay for the criminal defense of his aides." That's a blinding glimpse of the obvious, as the statute authorizing Walker's criminal defense fund says nothing of "aides," but rather "agent[s]," and if he was using the fund to defend his aides who are not agents, then that use of the fund would be illegal.

Reportedly there is about a 50/50 chance that Wisconsinites on Tuesday will return to office a governor "who is being investigated for, charged with or convicted of a criminal violation." That's seriously messed up.

GOP chairman's baldfaced lie is "disputed"

Whoever writes the Milwaukee Journal-Sentinel's headlines is quite the comedian. Reince Priebus, the ridiculous chairman of the Republican National Committee, tells an outright lie — that there are tens of thousands of fraudulent votes cast in the State of Wisconsin — and the Journal-Sentinel calls it an "allegation" that is merely "disputed."

"We need to do a [percentage] point or two better than where we think we need to be, to overcome it," sez R. Priebus, so you know what's coming if Tom Barrett edges Scott Walker* in the election next Tuesday.

More baseless lies dressed up as "allegations" by the local paper, which has made something of a habit of legitimating right-wing propaganda.

* Walker is quoted as saying he has no "'reason to agree or disagree' with Priebus' comments," but just the other day he was saying exactly the same thing as Priebus. At least they could keep their lies consistent.

Obviously he has a "reason to agree" if the pair are on the same page.

These clowns depend on popular stupidity — in turn fortified by disingenuous newspaper editors — in order to flourish. Wake up ffs.

Wisconsin papers create false equivalencies

Glad somebody exposed these silly propagandas for what they are.

Here's my favorite risibly false equivalency from — where else — the Milwaukee Journal-Sentinel:

In more signs of the national attention, both the National Review and The New York Times Magazine are running lengthy stories about the June 5 recall race.

Yeah, one by an actual reporter and the other by a complete hack.*

* Ed Fallone made short shrift of the WPRI buffoon earlier, here.

So Scott Walker is being investigated for crimes

That would be the right honorable governor of Wisconsin

It must be true, because Rick Esenberg — he's a professor of teh law, doncha know — said so, and in the Milwaukee Journal-Sentinel even:

To establish a legal defense fund ... [i]t is only necessary that your conduct is being investigated for potential criminal violations of the pertinent laws.

Ah, so as the governor has in fact established a legal defense fund, ergo the governor is being investigated for crimes: the "pertinent" ones being, incidentally, felonies. That means they carry prison sentences.*

That's good to know! Because Walker is up for reelection in a couple of weeks. And the Milwaukee Journal-Sentinel, which hosts Prof. Rick's legal lessons,** thinks you should return to office a governor who's being investigated for felony crimes. But wait! Right after he just got done establishing his "only necessary" bar, Prof. Rick appears to lower it a bit:

Nor is it even necessary for Scott Walker to be the one who is being investigated. If the agent of a candidate or a public official is being investigated, he or she can establish a fund.

Prof. Rick isn't being terribly clear here, is he? I mean, for a Marquette University professor of teh law. Who is the "he or she"? Is it the agent?

Nope, it's the candidate or public official, Scott Walker (who is both).

And, being a rather coy professor of the law, Prof. Rick doesn't want to tell you what an agent is, in the legal sense of the expression. Maybe he forgot to, after all his nattering about "partisan panic" and "proctological examination[s]."*** Well, I'll tell you: An agent is a person who is authorized to act on behalf of the principal. The principal, in this case, is Scott Walker. And the agent could be one of several individuals already implicated — or soon to be implicated — in the Milwaukee County DA's investigation. Funny Prof. Rick wouldn't tell you what an agent is, huh?

Because the thing is, if the agent mentioned in the statute wasn't authorized to act by Scott Walker, then she or he is no agent at all.

Evidently Prof. Rick was seized by his own partisan panic and clenched sphincter, because for the purposes of the relevant statutes the public official and the agent(s) are one and the same, given that the authorization to act is bestowed upon the agent(s) by the public official.

"Much ado about nothing," harrumphs Prof. Rick.

Well sure it is, when you simply ignore a substantive legal term of art.

Too cute by half, this character is. God help his law students, if they're absorbing any of his special brand of Republican Party disingenuousness.

* As opposed to merely confined at David Clarke's evangelical county jail.

** He's kinda like their agent, reporting from WISGOP HQ.

*** "Elevating the discussion," is what they call this. The elevating in this instance, assumedly, is Prof. Rick's characterization of his adversaries' heads elevated up their asses: respectful debate. Thanks for that, MJS.

Wing-nut Freudian projects own sexual frustration

A typical suburban Milwaukee Journal-Sentinel reader responds:

There is no way that the man's wife does not have a huge effect on the conduct of the [John Doe] investigation. A man has needs and a wife with a husband that has a powerful position that can control the outcome of a political prosecution and doesn't do what his wife desires will not be seeing those needs met any time soon. This is certainly a much worse conflict of interest than even the signing of a recall petition. The sex drive is very powerful and being cut off by the wife is certain to induce bias into the case.

Haha.

That's right, kids: It's pent-up semen that will bring down Scott Walker.

Well, whatever it takes, I guess.

One square blockhead surrounded by reality

That would be Sunny Schubert, among the "columnists" retained by the Milwaukee Journal-Sentinel to "elevate the level of discussion," who vilifies the homeless* as "squalid squatters" while choosing to heap praise on — I'm not making this up — "big corporations" like Home Depot.

Presumably because a Sub-Zero carton makes adequate living quarters.

On the other hand, perhaps David Haynes and his friends on the daily paper's editorial board are to be commended for providing a platform to let conservatives make themselves look as foolish as humanly possible.**

Sunny Schubert, incidentally, is the same one who inaugurated Haynes's project with the admonition, "Dems should shut up." Yes indeed. Just kick back and marvel at Sunny Schubert's comic lack of self-awareness.

* A lot of these folks suffer from mental illnesses, so Sunny Schubert's Republican ravings are more insidious and heartless than they appear.

Not that that should come as any surprise, where one of the Grand Old Party's current golden boys is an enthusiastic disciple of Ayn Rand.

** The one who is to be commended is Caryl Davis — whose name the Journal-Sentinel's editors can't even spell correctly: they advertise her as "Carol" Davis — who made one post and apparently fled the scene.

Wisely.

6,200 is the most controversial number

Rejected Three Dog Night song title?

Nah just the Journal-Sentinel carrying water for Scott Walker.

MJS: Level of discussion elevated higher still

"Tossing insults," announces Marquette University professor of law Rick Esenberg, is "the preferred approach of the Barrett camp."

That would be the same Rick Esenberg who just got done saying Milwaukee mayor and Democratic candidate for governor Tom Barrett was suffering from 'female hysteria.' And all of it at the Milwaukee Journal-Sentinel's project devoted to "elevating the level of discussion."

Dunno who should feel sillier, the paper or the university.

Although the paper is pretty much beyond hope at this point. I know the newspapers are dying but they don't have to be so pathetic about it.

Journal-Sentinel: Consider the discussion elevated

Commenter Jim Spice notes Marquette University professor of law Rick Esenberg's use of the term 'having the vapors' to describe Milwaukee mayor and Democratic candidate for governor Tom Barrett. 'The vapors' is an archaic expression for an equally archaic Victorian-era condition known then as "female hysteria." Once again, Esenberg's addlepated prose* is part of the Milwaukee Journal-Sentinel's latest project of enlisting local bloggers, purportedly to "elevate the level of discussion."

How's that workin' out for ya, MJS?

Predictably, it was the right-wingers who poisoned the well.

* At least somebody's checking his brutal spelling and grammar.

Yes let's elevate the level of discussion shall we?

An initial entry in the Milwaukee Journal-Sentinel editorial page editor David Haynes's local blargher project, which was advertised to "elevate the level of discussion," begins — I shit you not — "Dems should shut up."

"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.

Tom Barrett's wife did what?

Emails from Barrett's wife violated MPS policy

Or so announces a current Milwaukee Journal-Sentinel headline.

The story claims — without substantive basis: it's not explained how the Milwaukee Public Schools reached the determination memorialized in the headline — that Kris Barrett, wife of Milwaukee mayor and candidate for Wisconsin governor Tom Barrett, violated the MPS ethics guidelines against specific politically-related activities using the MPS email system.

Follow the paper's link to right-wing creeps Media Trackers' website (like Hell I'll link to it) and compare the content of Ms. Barrett's emails with the proscribed activities. None of the emails are "contribut[ions]" either in "financial resources" or "donate[d] services," nor do any of the emails contain attachments of "political or campaign materials." Not a one.

What a crock. If it really is the case that Ms. Barrett was found in violation of MPS guidelines, and those are the proffered emails and the allegedly relevant proscriptions, then Ms. Barrett should contest that finding. Any halfway competent litigator could easily knock it down.

Or any halfway competent reader of English, for that matter.

And the reporting, by Sharif Durhams, is textbook gullible. Just awful.

It's really sad what's going on up there in your great State these days.

MJS right-wingers to "elevate level of discussion"

Hilarious.

Notes Milwaukee Journal-Sentinel editorial page editor David Haynes: "Another writes regularly for a local think tank." Except three of them do, in addition to a fourth who writes regularly for WPRI, but he already has a regular column in the Milwaukee Journal-Sentinel. What Haynes also fails to mention is that Rick Esenberg's Kulturkampf boutique law firm — which last I heard consists of Prof. Rick and Mike Gableman's former law clerk — is in essence a subsidiary of the Bradley Foundation.

Here's Prof. Rick "elevat[ing] the level of discussion."

And some observers may recall Prof. Rick's lojinks last spring, when he and his compadre James Troupis filed a frivolous lawsuit in Oconto County, the distorted fruits of which they used to underpin 14 comic faux-arrest warrants against the State's Democratic Senate caucus.

Whose idea was it to let this character teach law at a university?

Glad I got the hell out of there before he turned up.*

* Although I admit I was sworn to the bar by Justice David Prosser (following an extended homily on professional ethics, ironically enough).

Of course it could have been worse: it could have been Mike Gableman.

Milwaukee columnist Joel McNally propagates a myth

How disappointing — depressing, even — to find Joel McNally, who writes an otherwise quality political column in the Milwaukee Shepherd Express, propagating this complete myth that the Wisconsin Supreme Court is somehow tasked with ordering the formation of a tribunal to assess the Wisconsin Judicial Commission's complaint against Justice David Prosser:

Nearly two months after Prosser was charged, the [Wisconsin Supreme Court] still has not been able to appoint a three-judge appeals court panel to hear evidence, decide guilt and recommend any appropriate punishment.

It doesn't need to be able to: that court has nothing whatsoever to do with appointing the panel. Why would a scribe of McNally's abilities trust the Milwaukee Journal-Sentinel, which is presumably where McNally has obtained his premise, over the plain language of the State statutes?

Here it is again:

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

How much plainer could it be? Go ahead and read Wis. Stats. §§ 757.81 through 757.99 and show me where the Supreme Court has anything to do with the commission's or the panel's work until that work is complete.

You won't find it. The complaint is filed with the Supreme Court for one obvious reason: because that body has supervisory authority over the State judiciary and the filing of the complaint is mere notice that an action has commenced. The process described in the aforementioned statutes is unique; it's neither civil nor criminal and indeed the statutes themselves explicitly acknowledge the uniqueness of that process.

Nowhere is the Supreme Court given any authority over the formation of the appellate judge panel and indeed if the Supreme Court is denying the exercise of a chimerical authority then it is thwarting the clear directives of the statute whereby the investigative process is wholly given over to the judicial commission and the appeals court judges.

Nobody should ever trust newspaper or teevee reports of legal proceedings,* especially these days when so many original sources are available online. And certainly don't trust the Journal-Sentinel, which has even editorialized that the complaint against Justice Prosser  —  whose candidacy the paper endorsed last year  —  should be dropped, again, based on the demonstrably false premise that the Wisconsin Supreme Court has formative authority over the judicial conduct panel.

The Supreme Court has nothing to do until the panel has done its work and more recently we had Prosser's "conservative" ally Justice Patience Roggensack recuse herself from a case that isn't even before her court!

The present situation is one of pure lawlessness and again I ask myself, what is the point of even posting at this blog directed to a jurisdiction where conservative media drive the political narrative and now even prominent local liberal commentators are suckered by that narrative.

Well, whatevs. Have at it, y'all. And hey, there's always Rick Esenberg.

I have a couple of "unfinished business" posts I want to throw down but after that, it's either back to hiatus or I'm going to find something else to write about other than this banging-your-head-against-a-wall stuff.

* An FYI: Worst offender, CNN's Jeffrey Toobin. That dude is dreadful.

Walker has less than a month to create 250K jobs

Bill Lueders: Scooter's vanishing acts

"By the end of his term," June 5, "God willing," as he is fond of saying.*

* I'd mention that al-Qaeda also punctuates its press releases with this mini-prayer, but I'm mindful of the Journal-Sentinel's admonitions.