Wisconsin's Scott Fitzgerald is a skilled politician

In news from the People's Republicans of Fitzwalkerstan:

"I would just be somewhat cautious in whatever we do so that it doesn't end up creating sympathy for the Dems," Tad Ottman, a Fitzgerald aide, wrote to his chief of staff.

Scott Fitzgerald, the GOP leader of the State Senate whose petty arrogance is the stuff of national legend, proceeded to issue 14 ersatz arrest warrants for the Democrats, supported by a legal memorandum which advised having a six-months-pregnant woman "carried ... feet first" into the Capitol building in Madison.*

I shite you not.

The authors of the memo insisted that Fitzgerald's authority to "compel" the attendance of the 14 Senators was without limit.

And evidently Fitzgerald took them seriously.

I spotted one of the 14 in a room in Shorewood the other night and made a point of shaking his hand vigorously and thanking him.

Fitzgerald, I guess you can thank the "Tea Party" for him.

* Ironically, a Dane County circuit court judge found that Fitzgerald's accomplice, Gov. Scott Walker, violated the Wisconsin constitution when he barred pregnant women from entering the Capitol building.'

Damned if you "carr[y] ... feet first," damned if you don't.

eta — Fitz lawyer: Dems' departure was a 9-11 type emergency

Blessedly, those charnel houses resist trivializing by dint of the extravagant delusions of grandeur of a Republican-for-hire lawyer.

Right-wing condescension in Wisconsin, Day Two

CAPITOL KAOS, Agent Rick reporting for Faux News duty

I finally had a chance to listen to Joy Cardin's March 30 interview with Marquette professors of law Ed Fallone and Rick Esenberg, discussing the events unfolding in Judge Maryann Sumi's courtroom in Madison. The link is here, and it's about 35 minutes. Prof. Fallone has got it together, and you'll hear little more from him than you've already read on this here blog over the past week, starting last Friday.

Esenberg, on the other hand, is priceless, so desperately does he want it to be 1943, when the Wisconsin Supreme Court ruled that a dicey procedure* in a political branch might not be enjoined.

But much has changed since then, most importantly the enactment of the Open Meetings Law, which set in place a number of directives to the courts that make Prof. Esenberg's 1943 case considerably less significant than he makes it out to be. But Prof. Esenberg is having none of it, and literally sneers at anyone who thinks differently.

But first, Esenberg has apparently forgotten about the chicanery perpetrated by the Republican Senate leader Scott Fitzgerald, who Esenberg helped advise that a six-months-pregnant woman might be "carried ... feet first" over that legislative chamber's threshold:

The mess that we find ourselves in now is because, I believe, that the circuit court failed to give adequate attention to whether or not this was a morass into which she should have plunged in the first place.

It's laugh-out-loud stuff, and the gist of Esenberg's complaint is that Judge Sumi hasn't explained to Esenberg every step of her reasoning up to this point: Rick is "extremely disappointed" that Judge Sumi hasn't acknowledged Rick's concerns, which is absolute nonsense because the one case upon which Rick hangs his hat is referenced throughout documents filed with the court, including, significantly, the District IV Court of Appeals certification of Ozanne v. Fitz to the Supreme Court. Rick suggests Sumi is simply ignoring it. Poor guy.

And unfortunately for Prof. Rick, it isn't the only case.

Another thing that bothers Rick is that Dane County District Attorney Ismail Ozanne didn't sue the Legislative Reference Bureau along with the secretary of state. But if your objective is to enjoin publication, which is a legal term of art and is what is required by the constitution and the statutory framework, then why would you sue the Kinko's kiosk?** This concern catapults Prof. Esenberg into full sneer-mode:

The one thing I think should have happened here is that a lawyer who read the law, and I'm talking about the statutes and, y'know, not a publication that is sent to schoolchildren to explain to gradeschoolers how, y'know, a law goes into effect, but actually read the law ...

And if you think "sneering" is an exaggeration, go to 32:45 of the interview. Evidently invoking "schoolchildren" is a rhetorical specialty of Rick's, because he pulled the same stunt on me when I pointed out that Michael Gableman's ethics case was still pending after the Supreme Court delivered its opinions — or "writings," as they have become known — in the matter. Rick told me I needed to consult something other than "horn book" civil procedure, which is like accusing someone of only having read the CliffsNotes version of The Brothers Karamazov or, as Rick would put it: "[G]o read Sartre."

But then, lo and behold, Wisconsin Supreme Court Justice N. Patrick Crooks, who has been a trial judge and an appellate judge for 30-plus years, appeared before a special committee of the legislature to point out that, yes, the complaint against Gableman is still pending because — just as this space had explained earlier — Gableman failed to win his motion for summary judgment, which is the question an appeals court panel had convened to hear in September of 2009.

So, yes, I had certainly consulted something other than a horn book: I consulted something called the law prior to making the claim, as did Justice Crooks prior to affirming it, as has, obviously, Judge Maryann Sumi. She's not conducting this hearing — and they call them hearings for a reason — for the special benefit of Marquette's Rick Esenberg.

Rick has a right to his argument — which is wrong, as it turns out — but he has no cause to sneer and especially no business sneering at a presiding trial judge simply because she hasn't acknowledged Prof. Rick's existence. The hubris, as they say, is strong with this one.

But the truly depressing thing is, the local nut-right simply accepts Prof. Esenberg's words as Gospel, and his sentiment find its way into the appalling personal attacks against Judge Sumi among the basest dregs of the Milwaukee Journal-Sentinel's comments threads.

Meanwhile what Judge Maryann Sumi is doing is an exemplary job and she's clearly — crystal clearly — been doing her homework.

* There is procedure and there is substance, a fundamental distinction in all law, and a very important distinction in this case. It's why the Justices of the SCOTUS were moved to devise the intuitively redundant expression, "procedural due process."

** No disrespect to the LRB, but it's the best metaphor I can think of to describe a core question of the case. Amusingly, Esenberg accuses the LRB of injecting politics into the proceeding when in fact the LRB is the least political party, named or unnamed, to the proceeding.

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.

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

Justice Prosser hires James Troupis

Which is intriguing because this.*

Troupis, Bopp, a Koch-funded legal outfit ... this baby's got 'em all.

Interestingly, Mike Gableman once grilled a Wisconsin lawyer about George Soros but apparently never saw fit to grill a Minnesota lawyer about David Koch. Ain't no double standards there at all, Nosiree.

* Mr. Troupis is representing every petitioner but the kitchen sink. As is our old pal Prof. Rick. Small world aina? By the way, that may look like a lot of individual respondents but that's the Wisconsin Government Accountability Board: Six judges and its general counsel.

Troupis wrote the famed "carried ... feet first" legal memorandum which even its recipient, Scott Fitzgerald, described as "comical."

This whole shebang is comical alright.

Esenberg "carried ... feet first" from Capitol

Figuratively, at least:

You know, I was befuddled by the professor's opinion. Assuming that the professor got the map and the data at the same time we all did, assuming he had ready experts who could manipulate the GIS data and what they call the geoshapes, it is astounding to me that the professor, with such superficial information — and assuming the information is the same information I have — it is astounding to me that that professor could come in here and render a legal opinion on such a flimsy basis. As a responsible lawyer, adhering to the ethical standards that govern my trade, I could not sit here and give you a legal opinion because I don't know. And I'm telling you, you don't know either.

— Peter Earle, response to committee inquiry at 9:32

Ouch. That's got to leave a mark, as the kids say.

Ubiquitous Republican-for-hire lawyer James Troupis despatched sometime co-counsel Rick Esenberg to Madison yesterday to pronounce definitively that the WISGOP plan "is simply not vulnerable" to legal challenge and that "any challenge to the plan would be almost frivolous."

Funny, because it was none other than the team of James Troupis and Rick Esenberg that filed an "almost frivolous" suit on March 1 in Oconto, the misrepresented fruits of which became the basis for Troupis's notorious legal memorandum advising Republican Senate Majority Leader Scott Fitzgerald to have apprehended and forcibly conveyed by law enforcement a seven-months-pregnant woman into the Capitol building.

Along with 13 other of Senator Fitzgerald's political rivals, for all of whose arrests Sen. Fitzgerald had issued warrants, following which Troupis promptly invoiced the State the sum of twenty-six thousand, nine-hundred-and-fifty-five dollars. Meanwhile Rick Esenberg continues to be presented as a disinterested academic observer in the local press.

I'm trying to put, at least in perspective to me, I just want to make sure I have the right person, the same professor who comments on Christian radio, conservative radio talk shows, and blogging? — Wisconsin State Senator Jon Erpenbach

And Fox. Yes, that's our Prof. Rick of Marquette University Law School.

Scott Fitzgerald had better hope he's wrong

I'm fairly confident he is, but just in case:

I do, therefore, restrain and enjoin the further implementation of 2011 Wisconsin Act 10. The next step in implementation of that law would be the publication of that law by the Secretary of State.

That's from the Dane County circuit court order currently in force, which affirms not only the Secretary of State is the only official with the authority to publish the Act, but that "further implementation" generally is enjoined. If so, according to the outlandishly triumphalist statements made by Senate leader Scott Fitzgerald this evening, he could be flirting with a bigger problem than simply being ridiculous.

Because it appears he's trying to find his away around a court order.

And where you do that is in court, not on some Friday p.m. romp.

eta: Okay, now this is getting leagues beyond ridiculous:

"It's my opinion it's published, it's on the legislative website, it's law," Republican leader Scott Fitzgerald said. "It was clear to me after our discussions this morning, if it in fact it is [sic] posted and it says published and there's a specific date on it, it would be very hard to argue this was not law."

It's true because it's on the internet (not unlike Time Cube).

Seriously, lawyers told him this? Come on. They weren't from Waukesha County by any chance were they? Maybe the 9-11 guy?

I submit he and/or they be "carried ... feet first" out of the Senate.

Continued — Wisconsin statutes, a couple three of them

Club For Grothman assistant speaks

And it's none other than Rick Esenberg, who professes the law at Marquette University. Note Prof. Esenberg's — and the memo he discloses he assisted in preparing — conscientious avoidance of Wis. Const. art. IV, § 15, whose text could scarcely be more plain:

Members of the legislature shall in all cases, except treason, felony and breach of the peace, be privileged from arrest; . . .

All cases. That is, where there is no treason, felony, or breach of the peace — a Wisconsin court of appeals has lately interpreted this provision to include "all crimes" — there can be no arrest.

Sure, the Senate may "compel" absent members; but the acts of compelling must stop somewhere short of arrest, as absenteeism is hardly treasonous, criminal, or in disturbance of the peace.

O! for the olden days,* when "judicial conservatives" purported to honor the plain text of the law, and counsel "restraint." Perhaps Prof. Rick is arguing for something other than arrest, but he doesn't say.

Custody by means of physical force sounds like an arrest to me.

Ultimately, Sen. Fitzgerald and his conservative private attorneys can formulate all of the rules and resolutions they like, but none of them may trump the constitution's commands where they conflict.

And they clearly do here. Pure partisan politics, is what this is.

Much worse, actually, as the memo suggests that Sen. Julie Lassa, who is pregnant, be "carried ... feet first" into the Senate chamber.

I shite you not, dear readers. Win that "PR war," boys.

* Like probably last week when it was otherwise convenient.

Earlier: If Republicans oppose frivolous lawsuits
Later: Scotts Walker & Fitz — By any farce necessary
Breaking: A Volokh conspirator has been appalled

The Journal-Sentinel's Rick Esenberg Disclaimer

I see David Haynes and the mandarins on the Milwaukee Journal-Sentinel editorial board have added a disclaimer to Marquette University Law School professor Rick Esenberg's attempt at defending Mike Gableman's reported acceptance of a gift or favor from Michael Best & Friedrich, to the effect that Esenberg recently presented oral argument before the court on which Gableman sits. Judges are prohibited by the Wisconsin Code of Judicial Conduct from accepting gifts or favors from lawyers or firms if they have or are likely to come before the judge.

That's a relatively innocuous disclaimer compared to Esenberg's prior relationships with the Gableman political campaign. Esenberg appeared in a video produced by Wisconsin Manufacturers & Commerce which was distributed at a series of WMC luncheons in 2008. Rick Esenberg's former research assistant at Marquette, Daniel Suhr, assembled a "white paper" criticizing the record of former Justice Louis Butler — perhaps the only actor deserving of the appellation "honorable" in this whole sordid affair — the misrepresentations of law contained in which Esenberg strenuously defended at his blog, where Esenberg also repeated and purported to rationalize some of the sleaziest accusations against Justice Butler.

And Rick Esenberg's Bradley Foundation-funded Kulturkampf boutique law firm, the Wisconsin Institute for Law and Liberty, hired Tom Kamenick, a former clerk of Gableman's, as an associate. It's like incest but without the sex. Given the foregoing, the Journal-Sentinel's disclaimer is a bit of a joke. The fact that Esenberg argued a case before the Supreme Court isn't such a big deal, unless you realize what case it was, which the Journal-Sentinel's disclaimer doesn't identify.

The case is Wisconsin Prosperity Network v. Myse and Esenberg presented the argument instead of James "Carried ... feet first" Troupis, who represented Justice David Prosser during the latter's political campaign last spring. It's also the case from which Prosser disqualified himself in September, 2011 apparently after being pressured by the Journal-Sentinel's reporting, even though this blog had pointed to the potential conflict of interest as early as the previous April.

Speaking of which case, Prosser and Gableman literally rewrote the Wisconsin constitution to grant an injunction in 2010 in favor of the plaintiffs, a who's who of conservative Republican activists, the granting of which was executed even before the court had decided whether to take jurisdiction of the case. A decision is forthcoming in Myse but a date hasn't been announced. This blog wondered several weeks ago how a divided court is going to address the posture of that injunction.

The Journal-Sentinel is a wholly owned subsidiary of Journal Communications, Inc., which itself is in effect a wholly owned subsidiary of the WISGOP. The transparency of these relationships is remarkable.

But yeah, thanks for the illuminating disclaimer. Great public service.

$27K "carried ... feet first" out of public coffers

Get a load of this:

[Republican-for-hire attorney James] Troupis was paid $375 an hour, and other attorneys with his firm were paid[*] either $290 or $295 an hour. The total bill came to $26,955.

That was a real bargain wasn't it.

Even Scott Fitzgerald called James Troupis's legal advice "comical."

"We're broke." — WI Gov. Scott Walker

* Billed out as, more accurately. I wonder what the difference is between a $290 an hour attorney and a $295 an hour attorney.

Maybe $295 gets you the Hamline-tutored lawyer.

Wisconsin: Best story of the weekend

"Carried ... feet first." — famed legal memorandum

No cop in the State would arrest Senate Dems

— Dee Hall, WI State Journal (Sec. of State's paper of record)

Goldmine of quotes there. Although this one's tough to beat:

"We are supremely confident that we followed the law perfectly," said Andrew Welhouse, spox for Scott Fitzgerald.

As this blog has repeatedly said from day one this entire escapade was frivolous nonsense, and that no in-house attorney would abide Scott Fitzgerald's unconstitutional incarceration fantasies, which is why he was forced to go the outside Republicans-for-hire route.

The ordeal began Feb. 17 ...

The hilarity ensued March 2, in Oconto County.*

* Now that lawyer is screaming bloody separation-of-powers murder.

When convenient.

"Walkergate" — Shots Fired

Thing "carried ... feet first" into completely different thing

This could be entertaining.

Popularly cited election law expert Prof. Richard Esenberg knows Chris Liebenthal wasn't "campaigning" and that Chris is criticizing something entirely different than what he was accused of doing,* but Esenberg doesn't quite make those substantive distinctions clear, now does he.

Sort of like quoting a Wisconsin statute starting from the middle of it.

As for speculation and innuendo, how about Esenberg's pal Charlie Sykes and his tasteless musings over what personal information was redacted from Justice Ann Walsh Bradley's statement to Dane County detectives?

Don't hold your breath waiting for that condemnation of pure innuendo.

* Reading an online newspaper at work, essentially — the horror of it all.

Reality continues to amaze Scott Fitzgerald

Your grasp of reality, and control of your caucus as minority leader, continues [sic] to amaze me. — Scott Fitzgerald

Wisconsin State Senate Republican leader Scott Fitzgerald heaps scorn on his Democratic counterpart, minority leader Sen. Mark Miller. The reality is that the 14 Democrats — Miller's entire caucus — remain united in their resistance to the union-busting provisions in Fitz and Governor Scott Walker's so-called "budget repair bill."

Scott Fitzgerald's own personal "reality," on the other hand, involves issuing ersatz "arrest warrants" against his political opponents.

Appearing telephonically on MSNBC's The Last Word yesterday, Fitzgerald strayed far from the reservation by declaring federal stimulus funds improved the State's fiscal situation, and incorrectly attributed a remark of Henry David Thoreau's to Thomas Jefferson.

Fitz also alleged two of the Democrats make frequent visits across the Illinois border to Kenosha, WI, an indication of how phony his "arrest warrants" are, otherwise Fitz would have had the two "carried ... feet first" into the Wisconsin Senate in accordance with the advice of his privately retained Republican attorneys, who recently filed a suit in Oconto County that they had to know they would lose.

Rather, the conservative attorneys did so to obtain an ancillary statement they could present to Fitzgerald, which they didn't quite obtain, but affirmatively claimed they did anyway, in a memo to Fitz.

Meanwhile Walker "speculates" Miller has been on the phone with labor leaders "in Washington or whatever," "with no apparent irony."

Recall (pun intended) that according to a conservative think tank's poll, 65% of Wisconsinites want Walker to compromise, and the only compromise at issue is the continuing right to collective bargaining.

Wisconsin: All this talk of injunctions

And the seething (albeit comically uninformed) right-wing insisting that of Dane County Circuit Judge Maryann Sumi is without authority, reminds me of the time Justices Prosser and Gableman enjoined a party in a case the latter Bros. hadn't even taken jurisdiction of. And all the pair had to do was literally rewrite the Wisconsin constitution, because that's how strictly the two conservatives construe, evidently.

I hear tell some interested parties are lobbying to have Justice Prosser "carried ... feet first" from his chambers on July the 31.

Wisconsin electoral redistricting errors revealed

Waukesha Co. clerk relieved it's not her fault for once
Reports the Wisconsin State Journal

Those affected are advised to contact the responsible WISGOP attorneys at Michael Best & Friedrich and Troupis Law Office who, in return for one wholly speculative peppercorn, will arrange to have them "carried ... feet first" into the correct municipality (provided they have a photo ID).

Fitzgerald touts record of lawbreaking in Senate bid

Exciting news, Jeff Fitzgerald is running for the U.S. Senate:

Wisconsin Assembly Speaker Jeff Fitzgerald (R-Horicon) says his experience shepherding controversial collective bargaining reforms through the legislature has left him battletested [sic] and ready to take the fight for true reform to Washington.

Which is funny because not only were the reforms "shepherded" in violation of Wisconsin law, but according to trial court testimony, it was Fitzgerald personally who held up providing the minimum notice for the fateful joint committee meeting of March 9, 2011. Rachel Veum, the Wisconsin Senate's Records and Forms Management Specialist, testified April 1 that she had to "run" around the Capitol in search of Fitzgerald.

And Fitzgerald, by not being in his office at the crucial moment, was the reason why the elapsed time between notice and meeting was one hour and 57-ish minutes, a fact admitted in court by Fitzgerald's own counsel.

Thus was Fitzgerald himself responsible for the subsequent constitutional crisis, which was only settled after a bare majority of the State Supreme Court discovered a novel form of judicial authority that, as we learned somewhat after the fact, it was so eager to announce in order to save WISGOP legislators the trouble of convening a lawful meeting that the four marched into the dissenters' chambers, a struggle ensued, and one justice admitted to having placed his hands around the neck of another.

And of course it was Assemblyman Jeff Fitzgerald who led the demand for the arrest, custody, and secure police conveyance of his political adversaries. Fitzgerald's brother Scott, the Senate Majority Leader, paid $27,000 for a legal memorandum purportedly authorizing the pair to have the entire Wisconsin Senate Democratic caucus — including State Senator Julie Lassa, who at the time was seven months pregnant — "carried ... feet first" across a threshold inside the Capitol building.

It's a record, alright. It's just not an especially enviable one.

Closing statement on Fitz Van Walker arrogance

For the record, Tuesday, March 29, in the Year of our Lord 2011:

I'm frankly surprised to hear the attorney general's office indicate that they considered the previous [temporary restraining] order to be in effect since, as near as I can tell from having read the newspaper, the Department of Administration and the Senate president seem to be proceeding under the assumption that they are not restrained, that there is no order enjoining the further implementation of this Act. So I don't know what it takes for the court to communicate to the attorney general's office in a way that is sufficiently effective to alert them to the fact that there is to be no further implementation of this legislation until this court has ruled on whether or not a permanent injunction is to issue. I had thought the court had ruled last time [March 18] that there was to be no further implementation. I had thought the court had ordered last time and made it very clear that the secretary of state was not permitted to issue a date of publication. The secretary of state acted in furtherance of the court's order and everybody else who was apparently, I presume, taking advice from the attorney general was acting in violation of the order.

— Robert Jambois, atty. for Assembly Minority Leader Peter Barca

The hearing continues Friday* and it is not going well for JBVH & Co.

Mostly because their case is threadbare and they're reduced to simply objecting to all evidence save the courtroom's wallpaper and drapes.

And frequently demanding recesses and adjournments, each of which was denied. Whether those demands are designed to forestall the inevitable or buy the Walker administration more time to unlawfully enforce its allegedly non-fiscal budget "repair" bill, who knows.

The most oft-repeated word they heard today was "overruled." JBVH attempted to rescind his motion to the court of appeals after it was already certified to the Supreme Court and his agent in circuit court, assistant AG Lazar, flagrantly contradicted the legal arguments set out in JBVH's paper filings (again). "Train wreck" springs to mind.

I don't hold it against AAG Lazar, however, as she appears to be doing the best she can with what she's got, and that ain't much.

The court has yet to declare or reach the question of whether "2011 Wisconsin Act 10 has not been published, within the meaning of the Wis. Stat. §§ 991.11, 35.095(1)(b),** and 35.095(3)(b)." But it will.

* April Fools Day, the third anniversary of Mike Gableman's election.

** 35.095(1)(b) defines: "'Date of publication' means the date designated by the secretary of state under sub. 3." These are precisely the statutory provisions discussed at this blog below. In other words, the court will frame its disposition to the question of whether the Act has taken effect just as did the approach here.

Prophecy, is what Oliver Wendell Holmes, Jr. called the law.

Obviously your humble correspondent concurs.

eta — From the Milwaukee Journal-Sentinel:

Marquette University law professor Richard Esenberg said he was not surprised by the ruling but criticized the judge.

That is so emblematic of the depressingly predictable right-wing response pretty much in its entirety, with their standard ad hominem fallacies. What constructive purpose they serve, I have no idea. Prof. Esenberg likes his WWII-vintage case, but a number of things have changed since then, like, the enactment of the Open Meetings Law, which enshrines several guarantees to the public tied directly to the State constitution, which trumps any dusty old case (esp. pre-1901).

Having followed the bulk of the hearings so far, it's clear Dane County Judge Maryann Sumi is aware of Esenberg's concerns, has relegated them to their proper place of relative insignificance, and is admirably conducting a complicated proceeding while owing no duty to communicate to the right-wing professor of law her every rationale.

Speaking of duties, does not the Journal-Sentinel have a duty to disclose the fact that Esenberg has lately been acting as counsel to Republican Senate leader Scott Fitzgerald? Prof. Esenberg was among the Republicans-for-hire attorneys who filed suit on behalf of the Oconto County GOP chairman, a suit they had to know was frivolous, seeking an ancillary statement from the judge which they did not receive but claimed they did in a memo to Fitzgerald, which memo Fitzgerald used to bolster his ridiculous ersatz "arrest warrants" issued against 14 of his Senate colleagues (all Democrats, naturally).

The legal memo advised Big Fitz he could direct law enforcement officers to have a six-months-pregnant woman*** seized into physical custody and "carried ... feet first" across the Senate threshold.****

Fitzgerald in turn acted on the basis of that advice.

More recently Esenberg deposited a risible piece of propaganda at NROnline shilling for the conservative Justice David Prosser, which begins by misattributing to Jean-Paul Sartre a sentiment delivered by a character in one of the philosopher's anti-Communist plays.

By Esenberg's reasoning Shakespeare was a bloodthirsty murderer of Scottish lairds and Sam Shepard an intellectually challenged hillbilly.

Prosser, alleges Esenberg, is a "moderate conservative" because he once in awhile does not join a hard-right three-justice bloc and who "received overwhelming public support in his election to his current term" without mentioning that Prosser was the only candidate on the ballot. Yet if you read the Journal-Sentinel, you'd think Esenberg was some detached academic, which is far, far from the actual reality.

*** Who had done nothing whatsoever unlawful.

**** Face down or face up was left to Big Fitz's wise discretion.