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.

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].

Capitol damage vs. Big Fitz's legal fees

Wisconsin.

Scott Walker and Mike Huebsch wrote you a letter today:

Repair work to the stone in the Capitol is expected to cost approximately $111,750.

This is your number, right there, 112 grand, to restore ALL of the interior damage to the Capitol building, some of which may have existed previously, as I read the underlying report, which can't say for sure. But never mind that. Additionally, they say, $49,300 as follows:

Ongoing repairs* $3,100
Add'l custodial services* $30,500
Pro photography $1,900 (Nice gig.)
Prepare estimate $13,800

So, okay. For one thing, the cost of preparing the estimate (granted, the estimate also looked at external facilities but the interior has always been the focus of the so-called "Capitol Chaos" whereupon the hippies and thugs ran rampant) was 12% of the total cost of the interior repairs. Nobody disputes the building's interior magnificence or its preciousness to the people of Wisconsin (and elsewhere).

However, 112 grand is your bottom line number. Chump change. By comparison, Scott Fitzgerald paid three lawyers twenty-seven thousand dollars** to tell him he could have a seven-months-pregnant woman "carried ... feet first" into the Senate chamber, something Fitz apparently had no intention of doing, as he himself characterized the $27K worth of Republican-for-hire legal advice, "comical."

In other words, Senate majority leader Fitzgerald personally spent a full 24% of what it will cost to repair the entire interior of the Capitol building for what was — and always was, as devoted followers of this space would know — essentially a load of complete bollocks.

Wherefore my question reduces to this: Why does the Journal Communications, Inc. organ Milwaukee Journal-Sentinel pump this story so absurdly disproportionately harder than it pumped — or probably will ever pump — the $350-per-hour lawyers story?

Same reason JRN's flagship teevee station is still rolling the "Capitol Chaos" character generator over its reports, presumably. And the reason its marquee radio performer is continually shoutraging.

But it's a serious question. Somebody's missing the point here.

By the way, Huebsch is asking the Wisconsin Supreme Court to declare the Wisconsin Open Meetings Law unconstitutional.

Is that not a story too? Seems to me it might be, especially since Huebsch himself was found by a different court to have violated the State constitution by barring the people of Wisconsin from the Capitol, the Capitol he's now complaining needs $112K in touch-ups.

The pattern is not emerging, it's beating you about the head.

* Repairs of what, or repairs to damage caused by whom, they don't say. Nor how the cost of "custodial services" applies to the repairs.

** Anybody cipher out the difference between a $290-per-hour lawyer and a $295-per-hour lawyer yet? That's a real heck of a stumper.

eta: See also Huebsch nicked and chipped his own limestone

Huebsch nicked and chipped his own limestone

Further to this here and this here.

Don't miss this photo, courtesy of that ever-enlightening friend of the blog, gnarlytrombone. Ya see that strip of yellow tape on the side of the teevee monitor? It reads: "Property of DOA, Capitol." DOA stands for Department of Administration, which Mike Huebsch is in charge of. And there is non-approved tape all over the bleedin' place.

So Mike Huebsch, remit yer invoice to Mike Huebsch.

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.

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.

Rappin' with Dad29, foil-hatted conspiracist

In which local wing-nut Dad29 ("old, nasty") joins the conspiracists.

Take it away, Dad29:

A month or so ago it was clear that [Dane County Circuit Judge Maryann] Sumi's kangaroo-ing was designed to delay a decision. That delay would result in [Supreme Court of Wisconsin] review of the case after Prosser was out, i.e., after August 1st. Of course, Kloppenburg had to win. Oh, well.

The backup plan is now in play. Kloppy requests a recount, which will take a long time.[*] As of 8/1, SCOWI becomes a 3-3 tie (at least in theory, but [Chief Justice Shirley] Abrahamson has counted her chickens very carefully). Ergo, a Madison Appeals court ruling will stand. Kloppy's just roadkill here. It's the vacancy on SCOWI that counts.

It was difficult to resist, on a lazy Sunday:

What Madison appeals court ruling?

shut up the tin foil crowd [Quoting Dad's mentor Esenberg.]

Hear that Dad?

Dad29:

What Madison appeals court ruling?

We note that SCOWI has not accepted any of the AG's or Administration's petitions on the matter at hand yet. You expect that SCOWI will take the case directly, illyt? On what basis?

Your humble scribe:

We note that SCOWI has not accepted any of the AG's or Administration's petitions on the matter at hand yet.

Right, but there is no appeals court "ruling." There was the [Department of Justice]'s District IV appeal, which the latter kicked upstairs, and the DoJ's ability to effectively represent its plaintiff secretary of state appears to be irretrievably broken. So that thing is dead in the water (maybe Cathy Stepp could fish it out). And there is [Secretary of Administration] Mike Huebsch's petition for a supervisory writ, also filed by the DoJ, a terribly unconvincing document, I'm sorry to tell you.

You expect that SCOWI will take the case directly, illyt? On what basis?

I don't expect them to, unless they want to rule the Open Meetings Law unconstitutional, at least insofar as it applies to the express prohibition on the sufficiency of the Fitzes' 1hr and 57m meeting notice (why wasn't Jeff Fitz in his office, by the way, when the witching hour was imminent? That's probably the biggest FUBAR in this entire escapade). But I would like to see the court declare the OML unconstitutional, for sheer entertainment at least. Imagine all of those restraintful, conservative jurisprudes "unmooring" themselves from the plain text and relying instead on Cromwell-era common law. What fun.

Incidentally, Daddy-O, you and your wing-right pals really need to stop criticizing Judge Sumi with your goofball ad hominem japes, as they embarrass nobody but you all (but of course you can keep it up for the pure entertainment value as well). What it tells people who have read the law (beyond Prof. Rick's "publication that is sent to schoolchildren," that is) is that you've got nothing *but* ad hominem fallacies. I've yet to see a convincing substantive criticism of Sumi's dispositions and I think it's highly likely the Supreme Court can't come up with one either.

By the way, Dad, have you had a gander at Judge Sumi's record on appeal? Here, let me show you it.

Dad29, back for more:

I've yet to see a convincing substantive criticism of Sumi's dispositions and I think it's highly likely the Supreme Court can't come up with one either.

I have, from Prof. Rick, who actually practiced law for quite some time — successfully.

As to Sumi: she gets the respect that she earns. No one has put forth a convincing argument that declaring a law un-Constitutional BEFORE IT IS LAW is anything other than kangaroo-ism, plain.

Your humble scribe:

I have, from Prof. Rick ...

Well, good for you guys. You might find it interesting that Prof. Rick's watershed, controlling precedent, Goodland v. Zimmerman [Anno Domini 1943], barely makes an appearance in the Huebsch petition for a supervisory writ. Instead, the petition focuses primarily on La Follette v. Stitt.

You want to know why? Because the facts and law at issue in Ozanne v. Fitzgerald precisely describe that situation which Stitt repeatedly insists it does not cover. Go read Stitt (it's online), and see how quickly you lose count of the 'excepts' and the 'unlesses.' In other words, Stitt is unavailing, and JBVH knows it, as is Lynch v. Conta and as is MJS v. Wis. DoA, but we (and District IV) knew that already.

Grandes problemos, Daddy-O. You'll see (maybe). By the way this business is all constitutional law and statutory construction, which you don't need 20 years experience taking depositions to evaluate. And there's plenty of other pretty sharp cookies among the Marquette law faculty who haven't practiced a whole hell of a lot of law.

No one has put forth a convincing argument that declaring a law un-Constitutional BEFORE IT IS LAW is anything other than kangaroo-ism, plain.

Except Judge Sumi hasn't done that. What do you think the briefing schedule is for? Besides, the convincing argument is sitting up right there among the black letter constitutional and statutory provisions. Have a look-see, Pops.

More Père le vingt-neuf:

But then, no one with half a gourd would have believed someone could issue a TRO [temporary injunction] against a law which is not actually a law, either.

And some law:

Wis. Stat. § Dad(29): [N]o one with half a gourd would have believed someone could issue a TRO against a law which is not actually a law, either.

Wis. Stat. § 19.97(2): [T]he district attorney may commence an action ... to obtain such other legal or equitable relief, including but not limited to mandamus, injunction or declaratory judgment ...

Why, it's unthinkable!

You're funny Dad.

Finis.

* It won't take a long time. Outside of MKE Co., it's a can of corn. Once the precincts get set up, the recounting will go very quickly.

It's not like they're counting one big bag of 1.5M ballots. They're counting several hundred much smaller quantities and tallying 'em up

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.

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.

How Patrick McIlheran lies for the WISGOP

Perfect example right here:

One Dane County judge rules that collective bargaining reform is unacceptable ...

This is your Journal Communications, Inc. brand of journalism.

But as one Dane County judge very clearly explained, both the federal Constitution and the Wisconsin constitution confer the judicial power equally to both higher and lower courts.* And as one Dane County judge very clearly explained, her ruling was directed at "the March 9, 2011 action of the Legislature's Joint Committee of Conference" and not whether the Walker administration's policy was acceptable or not.

Journal Communications, Inc.'s Patrick McIlheran is flat-out lying.

On the other hand, the Wisconsin Department of Justice, which is "representing the Republicans," makes repeated explicit defenses of Republican political policy in its latest filing with the Supreme Court pursuant to its attempt to have that court legislate from the bench.

The DOJ, on behalf of Scott Walker's infamous building maintenance supervisor Mike Huebsch, has gone so far as to suggest that the one Dane County judge, Maryann Sumi, violated the State code of judicial ethics by responding to the DOJ's petition for a supervisory writ (it's not an appeal, as has been widely reported). Now that is remarkable.

The Supreme Court, which does indeed have superintending authority over the (lower) circuit courts, on May 4 ordered Judge Sumi to file a response to the Huebsch/DOJ petition. Yes, ordered. The DOJ suggests that Judge Sumi should have exercised her option not to respond. The Wisconsin Rules of Appellate Procedure, at Wis. Stat. § 809.51(2), allow that a respondent to a petition for supervisory writ "may file a letter stating that he or she does not intend to file a response."

In other words, a respondent is not exempt or excepted from the Supreme Court's order but may disobey an order of the Supreme Court. Respondents to petitions for a supervisory writ are not limited to "court[s] and the presiding judge[s]," but the petition may be filed against "other person[s] or bod[ies]." And clearly Judge Sumi is in a different position vis-à-vis the Supreme Court than other persons or bodies not courts and presiding judges. Yet the Wisconsin Department of Justice suggests she should have disobeyed the Supreme Court's order.

Obviously Judge Sumi did not disobey an order of the Supreme Court.

And for not disobeying the Supreme Court's order, the Department of Justice is now veiledly threatening to file a motion for recusal against Judge Sumi, despite the fact that the ultimate determination for Judge Sumi's disqualification from the case of Ozanne v. Fitzgerald resides with Judge Sumi, once again, according to the black letter State law.

So at this point the Department of Justice is merely throwing stuff against the wall to find out if any of it will stick, in the course of its "representation of the Republicans." Thus whose impartiality is under question here is pretty obvious. And it sure ain't Judge Sumi's.

All of which demonstrates at least three things: (1) the ideological zealotry of Deputy Attorney General Kevin St. John, (2) Attorney General J.B. Van Hollen's acquiescence to Mr. St. John getting on this breakaway, and (3) the WISGOP Republicans' abject terror at attempting to have their union-busting bill passed by a non-illegal procedure.

McIlheran's bald lie is put forth in service of advertising his appearance tomorrow morning on another Journal Communications, Inc. buffoon's teevee show, Charlie Sykes's Sunday Insight [sic], which runs on Journal Communications, Inc.'s teevee station, TMJ-4. And of course Sykes is also an employee of Journal Communications, Inc.'s radio station, WTMJ.

There you have it, Journal Communications, Inc.'s corpo-blanketing of Milwaukee media with conservative Republican talking points. Because I wouldn't expect a discussion of the Rules of Appellate Procedure among Charlie Sykes and his guests tomorrow, who also include one of the most absurd conservative Republican political hacks in Wisconsin, Brian Fraley.

Roughly as absurd as the political hacks at Journal Communications, Inc.

* Matter of fact the same principle was invoked here in defense of J.B. Van Hollen, which days of defending JBVH at this space are long gone.

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.

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.

Fitzgeralds try foisting civics lesson on Wisconsin

Because evidently they simply presume we're all compleat idiots:

It's disappointing that a Dane County judge wants to keep interjecting herself into the legislative process with no regard to the state constitution. Her action today again flies in the face of the separation of powers between the three branches of government. — Assembly speaker Jeff Fitzgerald (R-WISGOP)

It's always amusing when right-wing ideologues accuse our judges of ignoring the law. Fitzgerald has no basis for this ridiculous assertion.

If anything "flies in the face" of separation of powers doctrine, it's the Open Meetings Law, crafted and approved by the Wisconsin Assembly, the very legislative body over which Jeff Fitzgerald now presides, and which Judge Sumi faithfully followed in both its letter and its spirit.

(Indeed the OML's letter explicitly describes its constitutional spirit.)

Judge Sumi's reasoning is a textbook demonstration of what are under less inconvenient circumstances for conservatives the latter's very own articulated principles of modest construction and judicial restraint.

What up bruh

Then there's Jeff Fitzgerald's big bruh broham Scott Fitzgerald, WISGOP leader of another State legislative body, the Wisconsin Senate:

There's still a much larger separation-of-powers issue: whether one Madison judge can stand in the way of the other two democratically elected branches of government. The Supreme Court is going to have the ultimate ruling, and they're still scheduled to hear the issue on June 6. This overdue reform is still a critical part of balancing Wisconsin's budget.

A couple of things. In Wisconsin, the judiciary is also a democratically elected branch of government (and Judge Maryann Sumi — like, for example, Justice David Prosser — has been elected twice*). And the Wisconsin Supreme Court is not scheduled to "hear the issue" on June 6.

The Supreme Court is only scheduled on June 6 to hear arguments as to whether or not it should decide to "hear the issue." There has been no appeal filed, as has been widely reported, and the Supreme Court has not even accepted Scott Walker's notorious Republican building maintenance supervisor Mike Huebsch's desperate petition for a writ.

And if it is the case that Fitz Van Walker's union-busting provisions of law are indeed "a critical part of balancing Wisconsin's budget," then not only were those provisions passed unlawfully according to constitutional and statutory open meetings requirements, they were also passed unlawfully according to Article VIII of the State constitution, which requires a three-fifths quorum of State Senators** in order to pass "any law which ... discharges or commutes a claim or demand of the state."

Hench-pariahs

Scott Fitzgerald did not have such a quorum when he had passed the provisions of law during a twilight meeting for which he gave only one hour and fifty seven minutes public notice, provisions of law designed to discharge collective bargaining demands of the State to the express end of, as the horse's mouth itself puts it, "balancing Wisconsin's budget."

In other words, even if the State Supreme Court complied with Governor Scott Walker's Department of Justice lawyers' demand that Judge Sumi's decision be vacated, 2011 Wisconsin Act 10 would likely be immediately enjoined by another court on other constitutional "fiscal bill" grounds.

But the reality of the matter is, Scott Walker and his henchpeople in the Wisconsin legislature are inexorably making themselves into pariahs even among their own partisan colleagues, and they can no longer count on the support of the latter to pass their union-busting provisions lawfully, otherwise they would have done it months ago, as early as March 10.

Hence the various desperate flailings of Huebsch, J.B. Van Hollen, et al.

* Thrice if you consider the recent decount attempt.

** And by the end of this summer it's highly probable the Fitz Van Walker regime's cohort of dependable partisans will be diminished considerably, as two or three incumbent Republican State Senators stand a pretty good chance of getting knocked off in recall elections. A recall election, incidentally, is precisely how Scott Walker first gained political power in his prior incarnation as Milwaukee County Executive. But naturally, as recall elections now pose a serious danger to Republican control of the State Senate, they're all of a sudden a really bad idea, says the WISGOP.

(Even as the WISGOP undertakes recalls against several Democrats.)

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.

Wisconsin statutes, a couple three of them

Or Fitzwalkerstan: Here, let me show you it

First up, Wis. Stat. 991.11, from which the latest hubbub derives, as there remains to complete the legislative process to 2011 Wisconsin Act 10 the one step — "publication"* — between the status quo and enforceability, the moment the Act is released to the various wiles of Gov. Scott Walker. The Act is currently subject to the wise and cautious shepherding of WISGOP Senate leader Scott Fitzgerald, who is devising any manner of chicanery to hand the thing off to Walker.

(He said he got this brainstorm from reading a newspaper article.)

So, 991.11:

Effective date of acts. Every act and every portion of an act enacted by the legislature over the governor's partial veto which does not expressly prescribe the time when it takes effect shall take effect on the day after its date of publication as designated under s. 35.095 (3) (b).

Stricken are the bits that aren't germane here, but remain legible so you can still read them if you so desire have no life (in which case there's another 7,000 pages of them awaiting your pleasure).

Anyway, first notice that while there is a 35.095(3)(a), the effective date of acts provision (991.11) does not make reference to it.

35.095(3)(a):

[PUBLICATION] The legislative reference bureau shall publish every act and every portion of an act which is enacted by the legislature over the governor's partial veto within 10 working days after its date of enactment.

That's the "publication" (or "printing," as this space would contend) Republican Senate leader Scott Fitzgerald claims substitutes for publication for the purposes of 991.11. But it has nothing to do with 991.11. Here is the relevant — the operative — provision to 991.11:

35.095(3)(b):

PUBLICATION The secretary of state shall designate a date of publication for each act and every portion of an act which is enacted by the legislature over the governor's partial veto. The date of publication may not be more than 10 working days after the date of enactment.

Now the secretary of state did (for he "shall") at one point designate a date of publication for the Act, but on March 18, he rescinded it in compliance with the Dane County circuit court's temporary restraining order, which prevents the secretary of state from publishing the Act.

As for the date of publication being not more than 10 working days after the date of enactment, there is no reason why the secretary of state may not designate one retroactively, if and when the court order is lifted. In the meantime the secretary of state is enjoined from so doing and places himself in peril of contempt by acting.

The point is that publication by 35.095(3)(a) (what Scott Fitzgerald "ordered") does not fulfill the requirements of 991.11. It still remains for 991.11 to be satisfied and so in nowise might it be said that 2011 Wisconsin Act 10 has taken effect, nor that it is enforceable.

Sen. Fitzgerald and now Secretary of Administration Mike Huebsch are completely unmoored from the text, as Clarence Thomas might say, although Sec. Huebsch is considerably more circumspect about the whole affair than is the supercilious bluster of Sen. Fitzgerald, with his "supremely confident" and "perfectly" adhering to the law.

I don't expect this one to end well for Big (nor Little, ultimately) Fitz.

* Scare quotes are trending. I used them precisely this way last night and today they appeared in Dane County circuit court "duty judge" Sarah O'Brien's March 25 memo** (.pdf; 2 pgs.). Betcha she scanned the subchapter heading also: LEGISLATIVE; CLASS 1 PRINTING.

By comparison to the subchapter heading, "publication" is a sub-sub-subchapter heading, and its meaning there is informed by 991.11, because 991.11 sends you to 35.095(3)(b) in the first place. Thus does the "publication" in 35.095(3)(b) have the meaning 991.11 gives it, and that meaning is as a formal step in the legislative process, that moment the Act becomes owned by the executive branch.

This "publication" — date of, to be exact; it's a linear, timeline companion to date of enactment, when the governor approves the Act — is within the authority of the secretary of state. It's not the same "publication" as the one in 35.095(3)(a), that publication in the legislative reference bureau's provisionally separate authority.***

And the one that is not implicated by 991.11, the one upon which Scott Fitzgerald and his merry Republican-for-hire attorneys are mistakenly relying (we'll see how that goes on Tuesday morning).

There's a reason why 991.11 explicitly points at 35.095(3)(b) and explicitly does not point at 35.095(3)(a). Because the secretary of state's publication is substantively functional in the legislative process — it's a scheduling milestone, if you will — whereas the legislative reference bureau's is a function of records-keeping: it's a recording of the milestone that was made by the secretary of state.

And since the secretary of state is the subject of a temporary restraining order, he cannot make the milestone and therefore the LRB's recording is blank, so to say, in the substantive legal sense.

I guess you might even call that a "primer" in statutory construction. Although I wouldn't as I'm not purporting to "teach" anybody, only show you so you can see and think and work it out for yourself.

Finally, they could clean up the whole mess by changing the "shall publish" in 35.095(3)(a) to "shall print." Get on it, Sen. Grothman.

** See Footnote 1.
*** i.e., "CLASS 1 PRINTING."

Earlier related:
Scott Fitzgerald orders 2011 Wisconsin Act 10 printed
Scott Fitzgerald had better hope he's wrong
The Milwaukee Journal-Sentinel is out to back from lunch

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.

Come to think of it that's not such a bad idea

JRN, Inc. calumnist McIlheran, cornered, warns:

If lawmakers concede the case by starting the bill over (complete with bucket-banging mobs and 61-hour debates), it will encourage Democrats to haul every piece of Walker's agenda into court the moment it passes.

Can't hardly wait.

Governor Scott Walker's latest legal gambit as filed by his latest petitioner,* Department of Administration Secretary Mike Huebsch, is to suggest the Open Meetings Law itself is unconstitutional.

While not overtly stated, the implication's sub silentio whisper** is inescapable, when viewed** in light of the existing evidence and the petitioner's presentation of the relevant Supreme Court precedent.

They'll likely come right out and say it in due time. More tomorrow.***

* Petition for Supervisory Writ, April 7 (.pdf; 37 pgs.).
Shorter Huebsch: We're suing everyone and everything, everywhere.

** Sorry for the mixed metaphor. Poetry is not my main bag.

*** -ish.

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.

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.

Van Hollen voids all pre-1901 law in Wisconsin

And quite possibly even the State constitution itself

That's the effect of Wisconsin AG J.B. Van Hollen's latest decree, which claims the Legislative Reference Bureau's "publication" is what puts laws into effect for the purposes of the State constitution.

Unfortunately for JBVH there was no such thing as the Legislative Reference Bureau before 1901 and therefore, by Van Hollen's own reasoning, all laws enacted prior to the LRB's creation are nullities.

This situation is rapidly becoming not particularly amusing at all, when even the attorney general of Wisconsin is acting lawlessly.

One thing's for sure, this here blog's done defending J.B. Van Hollen.

As for Scott Walker's enforcement man Mike Huebsch, Huebsch's pronouncement that the Secretary of State has no authority to rescind a date of publication is irrelevant, as Dane County Circuit Judge Maryann Sumi's temporary restraining order enjoins the Secretary of State's prior directive. It doesn't matter whether it was rescinded or not, and thus the question of whether the Secretary of State has the authority to do so never even enters into the equation.

This administration's disrespect for the rule of law is appalling.

And this is all on Walker and his henchpeople in the legislature.