Fierce Walker appointees stall Prosser prosecution

Reports Patrick Marley:

Franklyn Gimbel said Thursday he has given other options to the Judicial Commission on how to proceed with the case, but he was told not to pursue any of them for now. . . . Since Gimbel began work on the case, the makeup of the commission has changed so that it is now controlled by Walker appointees.

I call that an "appearance of impropriety," a legal concept for which several of the Wisconsin Supreme Court justices show little regard.

Read the whole story. It's amazing.

Some legal observers said the effort should be directed at the chief of the appeals court, because State law says those courts' chief "shall select the judges" on the judicial panel and does not specify a role for the Supreme Court in establishing the panel.

I suspect one of them may have been me.

P.S. Where's the Gableman prosecution(s) at?

Gableman flack profiled

In the Wisconsin State Journal:

Some Republican operatives contacted by the State Journal criticized Schmitz, specifically regarding the Gableman incident, but none of them would go on the record.

Why not? The Gableman "incident" was so sleazy by any objective measure, who could possibly fear retribution for criticizing it?

What a bunch of babies.

Gableman scratches self

Despite there being nothing to disqualify himself from:

I disqualify myself from participation in the matter.

That makes four of seven. Now what.

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.

Reminder — Gableman may be under investigation

Annals of the Peppercorn:

¹¹ The other forums may be the Wisconsin Judicial Commission and the Wisconsin Government Accountability Board.

He had better be.

More gems from the Chief Justice:

Justice Gableman’s Order, whether deliberately or accidentally, misconstrues the allegations against him . . .

Although Justice Gableman's Order claims that he "considered the circumstances of this case" and "the submissions of the parties," I conclude that nothing in Justice Gableman’s Order demonstrates that Justice Gableman actually considered the submissions of the District Attorney. Rather, because Justice Gableman's Order either intentionally or inadvertently misstates the grounds of the District Attorney's motion, the Order contains no reasoned basis for the Justice's conclusion that his recusal is "neither warranted nor justified."

The Order inaccurately asserts that the District Attorney seeks recusal because "the Michael Best & Friedrich firm was involved in the cases and had previously represented me." Actually, as I have stated previously, the District Attorney explained in the initial and supplemental filings that he seeks recusal not because Justice Gableman has been personally represented by Michael Best, but rather because Justice Gableman received allegedly free legal services from Michael Best.

Yet, nowhere in Justice Gableman’s Order is there any reference to payment (or absence of payment) for legal services, the fee arrangement with Michael Best, free legal services, a gift of legal services, or valuable consideration for the fee arrangement. None of these words, or any synonyms, appears in the Order.

In other words, the Wisconsin Supreme Court's so-called "conservatives" continue to rule by fiat and Mike "Peppercorn" Gableman hasn't changed a bit in terms of his "deliberate or accidental" misrepresentations.

After all, those are how Mike Gableman got elected in the first place.

However, those were more deliberate and deliberative than accidental misrepresentations, as Mike Gableman himself admitted. Indeed if they were accidental misrepresentations then failure to understand a relatively straightforward appellate case should have disqualified him from the State of Wisconsin's highest appeals court right off the bat.

Wisconsin Republicans must be real proud of this character. But nobody else should be proud of what he's done to the reputation of this court.

Wisconsin Supreme Court title block of the day

Denied:*

PETITION FOR SUPERVISORY WRIT PURSUANT TO WIS. STAT. § 809.71 OR IN THE ALTERNATIVE FOR THIS COURT TO TAKE ORIGINAL JURISDICTION PURSUANT TO WIS. STAT. § 809.70

Not effing both.

Petitioners ... must therefore go unarmed from their offices to the courtrooms, through public, unsecured areas.

The poor sods. They must be frightened out of their respective wits.

See also: 809.70.

* "[P]rior to the commencement of this supervisory writ/original action[**] proceeding ... District Attorney Gossett submitted to Justice Michael J. Gableman a memorandum, dated February 6, 2012 ... "

Which got neither of them anywhere.

** Now that is some sly joke, what with the forward slash.

Peppercorn Mike Gableman

Is back in the news, courtesy of Rep. Robin Vos.

Where are the WJC's complaints against Peppercorn Mike?

Anybody remember this cock-and-bull story?

Scott Walker's creationist bag-o-tricks

Take some expert completely out of context.

Standard creationist modus operandi. For suckers only.

More on this Gableman-quality teevee ad:

Wisconsin — the land of admirable good-government ideals[*] but also of some unpleasantly behind the times racial dynamics.

Thanks, Republicans! You're the best.

* And so much for those.

Wisconsin: It's about time to fire Franklyn Gimbel

Dear sir, your account is net 60 days in arrears.

Admits veteran Milwaukee attorney Franklyn Gimbel, who the Wisconsin Judicial Commission retained to "assist in the prosecution of [the] formal action" against State Supreme Court Justice David Prosser:

“Even though there's nothing in the statutes that requires [an order from the Supreme Court], apparently there's some past practices where that's happened,” Gimbel said.

Apparently?!

This guy filed a formal complaint against Prosser two months ago and he's still stuck on "apparently"? "Apparently," Mr. Gimbel's done little more than look at the Supreme Court's online dockets for a few prior Judicial Commission cases — including two which were filed against Prosser's Republican Party colleagues, Justice Annette Ziegler and Mike "Peppercorn" Gableman; that makes three out of four Republicans* on the court being the respondents in formal disciplinary actions — and was seeing the word "order" at the left hand side of the docket notations.

That isn't law. That isn't even doctrine. And it isn't even past practice, as former Justice Janine Geske points out in the same Shepherd Express article, it's a "referral," a mere acknowledgement. It's like an entry on an accounting ledger. According to Mr. Gimbel, Richard S. Brown, the chief judge of the Court of Appeals who is mandated by State statute to convene the three-judge panel which is to hear the Commission's case, is "waiting for an order from the Supreme Court before proceeding."

I hope he's not holding his breath because there ain't no such thing. The Supreme Court has no authority anywhere to withhold an order that doesn't exist in — nor is even contemplated nor implied by — the law.

The operations of the Wisconsin Judicial Commission's investigations and prosecutions in both ethics and disability cases are at arm's length from the Supreme Court and that arm is a detachable, detached prosthetic.

Seriously, if Gimbel hasn't gotten to the bottom of this after 60 days, it's time for the Commission to hire somebody who will do it. Hell, if David Prosser's Republican buddy Scott Fitzgerald can conjure up fake arrest warrants based on bogus premises derived from frivolous lawsuits, then somebody can compel Judge Brown to obey the clear directive of the State statutes and get on with entertaining the Prosser prosecution.

A prosecution that is separately mandated by State statute — it's one thing to disobey the law, it's another to obstruct its progress on a distinct procedural track: Here now we have both happenstances.

And Ed Fallone is correct, as usual: "[M]y guess is that they do not want to have a three-judge panel of the Court of Appeals issue a negative ruling against Prosser." Quite so. And they'll ignore the law to avoid it.

Even the chief judge of the Court of Appeals will ignore it. "Apparently."

What a travesty. Of the law. Courtesy of alleged judicial conservatives.

The latter phony pretense being the grandest farce of them all.

"Your precious belief that we have a government of laws in Wisconsin never fails to amuse." — @BrewCityBrawler

Fortunately that's still funny, but admittedly a little less so this morning.

* The fourth Republican is "hypocritical" and makes stuff up.

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.

Furthermore, news stories indicate that

the [Wisconsin Judicial] Commission presently may have requests to investigate possible misconduct by one or more justices.

Gee I wonder who that could be *cough* Mike Gableman *cough*.

I don't know Mr. Dawson but I took his media law course at Marquette University Law School. He was excellent, as was his course and his method of pedagogy. I remember telling him about a Ninth Circuit case that he'd never heard of in which Evel Knievel and his wife sued ESPN for calling the daredevil motorcyclist a "pimp." The Court of Appeals threw out the Knievels' complaint because, it determined, the ESPN photo-caption writer meant it as a compliment. Mr. Dawson was still laughing about the case when I mentioned it again months later. He struck me as a pretty straight shooter and a learned attorney, not a partisan at all.*

 * Incidentally this is not the same John Dawson who the idiotic wing-nuts at Media Trackers claimed signed a Recall Scott Walker petition.

Prosser got to fight. For the right. To ex parteeee

Mr. Reak is David Prosser's attorney, corresponding with Mike Gableman.

Most unusual indeed. Hardly at all surprising, however. #BFFs

Sabotage

eta: Prosser attorney letter to Gableman seeking recusal

Predictably, it's larded with nonsense at odds with Wisconsin law.

And it's dated May 8 but according to the docket not received by the Supreme Court until May 10 (except by fax). So much for formal proceedings. Maybe Mike Gableman can "tweet" his reply to Prosser.

And then Justice Prosser can "like" Mike Gableman on teh Facebook.

Shirley, you go girlfriend.

'Some justices who speak most forcefully for more prompt issuance of opinions are the very justices who are slow in circulating theirs.'

¶20 Another claim, particularly advanced by Justice [sic] Gableman, is that "in the 13 years, the nearly 13 years that this court has been doing it, no court in the United States, no court in this country has seen it wise to emulate our practice."

¶21 So what?

SHIRLEY S. ABRAHAMSON, C.J. (dissenting).

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.

What, no bonus for Mike "Peppercorn" Gableman?

"We're broke." — Wisconsin Governor Scott Walker, repeatedly

You have got to be effing kidding me:

Assistant Attorney General Maria Lazar, who defended Walker's collective bargaining law in an open meetings challenge and has handled the State's defense of Republican redistricting legislation, got a $1,000 bonus and a $1.50-an-hour raise in March, bumping her salary by more than $3,000 to $104,730.

Deputy Attorney General Kevin St. John, who defended the collective bargaining law in front of the State Supreme Court, got a $2.51-an-hour raise in March that adds up to more than $5,000 per year and brings his pay to $134,307.

Some defense.

Ms. Lazar admitted in a Dane County trial court that the Fitz Van Walker regime both broke the Wisconsin Open Meetings Law and violated the State constitution, which was pretty much dispositive in Judge Maryann Sumi's decision to enjoin Act 10, Scott Walker's "signature" union-busting "achievement"* and Mr. St. John, the lead attorney by the time the case got to the State Supreme Court, would have by rights lost that case but not for the alleged "conservatives" on the court dreaming up a jurisdiction unauthorized by the constitution.

Oh and by the way, contrary to the AP story, St. John & Co. were not "defend[ing] the collective bargaining law," they were defending the Wisconsin Republicans' breaking the law and violating the constitution.

This is what passes for meritoriousness under Scott Walker. Incroyable.

* From the MJS's comically fawning report of Walker's "barnstorming."

Why hasn't Prosser called for Gableman's recusal?

File under: Mike Gableman's date uncertain

Anybody remember these two little ditties?

Who will be the next Wisconsin special prosecutor — 09.02.2011

"I'm aware of a story involving another justice." — 09.03.2011

Perhaps Justice Prosser needs "the Honorable" Mike Gableman to testify to Justice Ann Walsh Bradley's history of workplace violence. But seriously, why has Mike Gableman thus far been immune from either a criminal or a judicial commission investigation? Or, for that matter, Justice Bradley? Because Gableman accused Justice Bradley of "striking" him on the back of the head. Or could it be that everyone else — like your humble correspondent — can't possibly take Gableman seriously.*

And, lest we forget the famous peppercorn ...

* With the exception of Justice Prosser, who calls Gableman, "tireless, indefatigable, and brilliant" (brilliance is doubly tiring doncha know).

Prosser also told the public to "get over" Gableman's pisspoor ethics. No. I personally find Justice Prosser's latter admonition ironic, as it was he who swore me into the Wisconsin bar immediately upon delivering a lecture on the paramount importance of professional ethics.

Was I not to have taken him seriously either?

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.

Make that "Side Door Davey"

Sez Franklyn M. Gimbel:

The [Wisconsin Judicial] Commission is opposed to the use of any side door or issuance of any dispositive decisions that would avoid such a hearing.

But you already knew that Court of Appeals Chief Judge Richard S. Brown* does not need any supplementary order from the Supreme Court to form a panel to hear the case against Justice David Prosser. Just because Prosser's attorney claims that such supplementary order was issued in the past does not mean that it is required in the present instance and especially does not mean that it was required in the past.

If that past practice was wrong, you don't follow it. Yet apparently that is what Justice Prosser wants to do: follow an incorrect past practice.

Make of that what you will. I think it's kind of funny. And sad.

* Who holds an advanced degree in Judicial Process.

P.S. The first sentence of Gimbel's second paragraph makes no sense, or else Brown is an "advised Judge" and Gimbel provided a copy of him.

Which at least wouldn't be as bad as cloning Justice Prosser's odious partner in mutual admiration, "the Honorable" Michael Gableman.

Loop Hole Davey

Hi everybody! What's up with this?

[Wisconsin Court of Appeals Chief Judge Richard] Brown has said he needs an order from the Supreme Court to create the panel.

Where's he getting that from?

If a jury is not requested [which it was not], the matter shall be heard by a panel constituted under sub. (3).

Sub. (3):

A judicial conduct and permanent disability 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.

He don't need no stinking order. That's his order ("shall") right there.

And I wonder what Justice Prosser's BFF Mike Gableman thinks about Prosser trying on every procedural loophole in the book in an attempt to keep his ethics case out of court. As for Prosser's "sparring" with the Chief Justice over his ethics case's posture, Prosser is wrong. While the Judicial Commission's complaint is filed with the Supreme Court, that court has nothing to do with it until the panel has heard the case and issued its findings. However it's not surprising that Prosser believes his case is already before the Supreme Court, as he's been known to issue extraordinary writs in cases where he and his allegedly "conservative" colleagues do not even have jurisdiction (and then removing himself from the same case because his personal political campaign lawyer — the notorious James Troupis, Esq. — was set to argue the case before him).

Hope y'all are having fun up there!

White Stripes: Black Jack Davey

Of Mike "Peppercorn" Gableman's "peppercorn"

In a word, preposterous:

The notion that the judicial code and ethics laws permit a judge to secretly receive expensive legal services (or fancy cars or lakefront real estate) in return for sham, symbolic payment — say, a "peppercorn" — is not merely frivolous, it seeks to play the [Wisconsin Supreme] Court and the public as fools. Here, Justice Gableman did not ever need to provide even a peppercorn.

Intervenors' Proposed Reply in Support of Recusal or Disqualification