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.

Roggensack to complement law enforcement

It's been some time but I'm certain I recall the usual suspects on the political right in Wisconsin castigating that State's Chief Justice, Shirley Abrahamson, for presenting herself as an ally of law enforcement. In the course of winning 69 of 72 counties in 2009, the CJ ran an ad featuring Dane County Sheriff Dave Mahoney's enthusiastic support. Above is a detail of Supreme Court Justice Patience Roggensack's Facebook cover photo which, according to the proverb, tells a thousand words. And it's no different than if Roggensack were depicted shaking hands with an insurance company or manufacturing concern CEO. We've all seen the case captions for the controversies that reach the Wisconsin Supreme Court: State v. Brown, State v. Lopez, etc. That large man with the prominent pistol, warmly embracing the smiling judge inside a court of law, represents "State."

I don't see Lopez around, nor, naturally, the hypocrites on the right.

Court amended statutes, admits Roggensack

[T]he statutes applicable to the [Wisconsin] Judicial Commission have been amended ... by this court several times.

Wowee. Some conservative huh?

Who's endorsing Roggensack for justice

This fevered character, for one:

[Milwaukee County Sheriff David] Clarke went on: "That's what the government fears. They don't really fear the criminal. They support the criminal after they've been arrested. But what they fear is a law-abiding person ... "

Um okay whatever dude. #tinfoil

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.

Roggensack foolishness is mostly true

Judge Charles P. Dykman, who retired in 2010 after 32 years on the appeals bench, said it was "foolishness" to equate complex cases heard by three-judge panels with minor summary disposition cases in which the appeal often lacked merit.

Nevertheless, "Mostly True" despite the foolish premise.

Must be legal logic.

You're an errand boy

Sent by grocery clerks to collect a bill.

(l-r) Scott Walker, Roggensack campaign advisor Brandon Scholz

Wisconsin Supreme Court footnote

What Dane County Circuit Judge Maryann Sumi enjoined in the spring of 2011 was the publication of Act 10, and not Act 10 itself nor any of its provisions (the "substance" of the law). Act 10 had already been enacted. The legislative process was completed. There was nothing left for the legislature to do. What remained for Act 10 was purely administrative. Bear that in mind during the inevitable storm of right-wing bullshit* should Judge Sumi decide to run against Roggensack.

* The Bradley Foundation's publishing house has started already.

Wisconsin Supreme Court Justice seeks reelection

Patience Roggensack also noted she is the only justice with the court who previously was a state appeals court judge.

Where she affirmed one potential challenger 12 times out of 13.

Jim Troupis, professional Republican concern troll

Here we go:

Troupis was disappointed Judge Sumi is considering a run. "It's obvious she was talked into it because of Act 10," Troupis said. "It should be about competence and qualifications, and clearly the only purpose of her running is to open that pro-union stuff."

What a dyck. And I'm sure Sneerin' Rick Esenberg won't be far behind.

Meanwhile have some facts, not foolish, condescending speculation:

Judge Roggensack affirmed Judge Sumi 12 out of 13 times

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

Prosser, Roggensack hypocrites? Of course!

Atty. Tom Basting writes:

The conference regarding [learned counsel John] Dawson was held in secret. After the vote was taken not to reappoint, Justice Pat Roggensack spoke to Gannet Wisconsin Media (according to the Appleton Post Crescent) and attempted to disclose what had occurred in the closed session — which she had insisted be closed.

Meanwhile Justice Prosser is deciding who gets reappointed to the chair of the Wisconsin Judicial Commission at the moment Justice Prosser is the subject of a pending Wisconsin Judicial Commission prosecution.

How embarrassing. For everybody.

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.

Prosser pal wrangles free from Prosser chokehold

Concludes Wisconsin Supreme Court Justice Patience Roggensack:

I conclude that the Rule of Necessity cannot trump the mandatory directive of the legislature.

So whatever happened to the mandatory directive of the legislature to the chief judge of the court of appeals to appoint a three-judge panel?

Same thing as happened to the mandatory directive of the legislature that under no circumstances is less than two hours notice to be given of a public meeting of the legislature, I suppose: it was duly ignored.

Continues Justice Roggensack:

Statutory interpretation begins with the words chosen by the legislature in order to determine the meaning of the statute.

Yes, and let's look at some words chosen by the legislature:

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.

Why hasn't the chief judge done so? We are told — continually by the Milwaukee Journal-Sentinel — that the chief judge is waiting for the Supreme Court's "order" to him to do so. That alleged requirement is pure fantasy. If Justice Roggensack is recusing herself from Justice Prosser's ethics case as the first step to prevent the Supreme Court quorum allegedly required to order the chief judge to appoint a judicial conduct panel, what we're witnessing is the biggest legal travesty since Roggensack and her "conservative" colleagues last June invented a power not authorized by the State constitution in order to protect their fellow Republicans from the consequences of the Republican-controlled legislature's facially illegal activities in passing their union-busting Act 10.

And the State's biggest newspaper is helping enable this farce.

Wisconsin high court takes a four-bambini lunch

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

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

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

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

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.

Jim Ott's critical thinking skills quote of the day

"Other people believe there's significant [voter] fraud. There's a lot of people that feel that there is." — Rep. Jim Ott, 11.15.11

That's a Wisconsin lawmaker justifying his Republican Party's photo ID law that will make it more difficult for more people* to exercise what Supreme Court Justice Patience Roggensack says is a First Amendment right. But the really sad thing is that's as good as their argument gets.

Ott went on to convict three individuals — who were named in the press but not charged with anything — of voter fraud with no evidence at all.

And this character is actually in charge of a legislative committee.

* Democratic-leaning demographics, not coincidentally.

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.

Intriguing Wisconsin legal theory of the day

"We need to ease our litigation burden in this State." — Scott Walker

Attorney Lester Pines said he was concerned about the DMV policy on not telling voters they could get IDs for free. "Potentially there is a legal problem in that it shows the State is interested as a matter of policy in charging for these [IDs], and that would be a poll tax," Pines said. "The agency's policy is to put revenue above protecting the right to vote."

Leave it to Walker to fire one of the smartest lawyers in Wisconsin.

"[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." — Wis. S. Ct. Justice Patience Roggensack

Justice Roggensack's claim cannot be repeated often enough.

(Partly because she may eventually be forced to back away from it.)

Wisconsin: Harder to vote than be a rapist

The following is an exchange between James Freimuth, an assistant attorney general with the Wisconsin Department of Justice, and Shirley Abrahamson, the Chief Justice of the Wisconsin Supreme Court. They are discussing what counts as "[t]he address at which the person is or will be residing" for purposes of the State sex offender registry in the case of State v. Willliam Dinkins, Sr. Dinkins was convicted of first degree sexual assault of a child in 1999 and then convicted in 2008 of failure to provide sex offender information upon his release from prison.

The Department of Justice argues that a park bench is a residence:

AAG: Black's Law Dictionary defines residence in part as, quote, 'the place where one actually lives, as distinguished from a domicile. Residence usually just means bodily presence as an inhabitant in a given place,' unquote. Also the word address ...

CJ: Those are the definitions you want? For 'reside'?

AAG: Uh, right. I think, well ...

CJ: Temporary. Actually lives.

AAG: Correct.

CJ: So, park bench okay?

AAG: Yes.

CJ: Grate outside the State Capitol okay?

AAG: Yes. Any location that's reportable to the Department of Corrections.

For comparison, see Wis. Stat. § 6.34(3)(a) for the documentation required to prove residency for the purposes of voting in Wisconsin. So there you have it. According to J.B. Van Hollen's Department of Justice, it's easier to register as a sex offender than it is to vote in an election.

And, with the State's new photo ID law, Governor Scott Walker and the Republicans who control the legislative branch just made it even harder.

Harder to exercise what is, according to the conservative Wisconsin Supreme Court Justice Patience Roggensack, a fundamental right guaranteed by the First Amendment to the United States Constitution.

eta: "[Y]ou should refrain from offering the free version to customers who do not ask for it." Wouldn't want to make it any easier to vote.

Story.