Out-of-State agitator seeks Bradley criminal charge

Among the right's relentless and speculative efforts to exonerate the documentedly anger-disposed Wisconsin Supreme Court Justice David Prosser (at left) from even a whiff of wrongdoing and instead hold an alleged victim of workplace violence responsible for and guilty of whatever transpired in Justice Ann Walsh Bradley's office on June 13, the latest is wing-nut professor William Jacobson's negligently disingenuous "theory."

Bradley may face obstruction charges, avers Jacobson, seizing on her use of the word "chokehold" in describing how Prosser came at her.

Blarghing desperately, Prof. Jacobson scours the literature in a facile attempt to implicate Justice Bradley herself of misdemeanor criminality. Contends Jacobson, if the contact made by Justice Prosser* does not conform to Jacobson's strict "legal" definition of "chokehold" culled from "police control procedures" and also the venerable treatise Wikipedia on Judo, then Bradley must be prosecuted to the fullest extent of the law.

"No one should be allowed to escape the consequences of Bradley's chokehold allegation, including Bradley," harrumphs the instructor.

Always thinking, these law professors! Sadly for Prof. Jacobson, a (the?) leading Wisconsin Supreme Court case on obstruction, State v. Reed (2005 WI 53), chokes off his own wing-nuttery. Were State prosecutors to press obstruction charges (§ 946.41(2)(a)) against Bradley per Jacobson's excited fantasies, they would face an insurmountable burden.

Reed unanimously affirms that among the elements the State needs to prove in a successful obstruction prosecution is that "[t]he defendant intended to mislead the [investigating] officer."** And according to the professor's fantasies, the State would further need to prove that Justice Bradley was mindful of Jacobson's technically restrictive understanding of "chokehold," and that Bradley deliberately eschewed Jacobson's definition for some more colloquial understanding. In other words, not quite the normal standard to which victims of alleged crimes are normally held.

Nor in fact Wisconsin's criminal defendants, for that matter.

Even assuming that Justice Bradley, in Prof. Jacobson's fevered dream of seeing her behind bars, must be held strictly to Jacobson's Wikipedia on Judo standard, that Justice Bradley further describes Justice Prosser placing both hands around her neck as a "chokehold," there is this:

Mistaken answers ... are not false statements made with intent to mislead the police. People can also disagree. People can have legitimate disagreements about what the facts are. People can also legitimately disagree on what the facts mean. Legitimate disagreements cannot form the basis for an obstructing charge.

Emphasis added. That's the law right now, in the State of Wisconsin. Which is to say, one person's both-hands-around-my-neck is another person's shime-waza (絞技), or yet another's police procedure manual.

Not only is there that but there is also this:

Knowingly made false statements that are not made with intent to mislead cannot form a basis for the charge of obstructing.

So in other words, even if Justice Bradley knowingly eschewed the pseudonymous internets contributors to Wikipedia on Judo and knowingly ascribed the description "chokehold" to a non-Jacobson-approved-both-hands-around-her-neck move, prosecutors would still need to prove — beyond a reasonable doubt — that Justice Bradley did so with the intent to mislead officers. Good luck with that one buddy.

If Jacobson expects all that to happen, then he's clearly gone 'round the bend. And indeed State v. Reed made the law more restrictive with respect to the rights of criminal defendants than it had been previously.

Prof. Jacobson should read State v. Reed not just to inform himself on Wisconsin law just in case he decides to go off an yet another ridiculous goose chase but to appreciate the clear, stepwise reasoning of former Justice Louis B. Butler, who wrote the majority opinion. Butler lost a close election in 2008 to Mike Gableman, after the latter deliberately and deliberatively lied about then-Attorney Butler's handling of a criminal appeal and Wisconsin Manufacturers & Commerce ran more than 3,000 broadcast ads criticizing a Butler dissent, the substance of which was affirmed by the most conservative members of the U.S. Supreme Court.

WMC did not similarly attack Scalia, Thomas, Alito, or Roberts.

Doing so would have been too logically consistent and honest and therefore violative of the strictest tenets of political conservatism in the current WISGOP mode, which favors both dishonesty and illogic.

Along the same lines, Justice Butler's opinion in State v. Reed adheres closely to traditional notions of conservative jurisprudence and indeed reverses an earlier Supreme Court case which had written into the obstruction statute an exception for "exculpatory denial[s]." Such exceptions, Justice Butler wrote, are best left for the legislature. Needless to say the cherry-picking practitioners of ad hominem fallacies at Wisconsin Manufacturers & Commerce never mentioned this case.

* No source denies Prosser came into physical contact with Bradley.

** Jacobson actually leaves this statutory provision out of his blog post.

The statute reads: "'Obstructs' includes without limitation knowingly giving false information to the officer or knowingly placing physical evidence with intent to mislead the officer in the performance of his or her duty including the service of any summons or civil process." At first glance it might seem that the "with intent to mislead" applies only to the "knowingly placing physical evidence." But that is not how we read the law. We read the law thus: "'Obstructs' includes without limitation knowingly giving false information to the officer ... with intent to mislead the officer in the performance of his or her duty ... " Based on Prof. Jacobson's truncated presentation of the obstruction statute, it appears he's made an egregious error in statutory construction, and the remainder of his reasoning — such as it is — obtains from that error.

Remarkably, Jacobson ignores the intent element altogether.

This is a professor of law, folks. Granted, a professor of law to the wing-nuts (check out the crazed commentary at Jacobson's blargh post).

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

In light of our friend Mike Gableman's repeated claims that Wisconsin Supreme Court Justice Ann Walsh Bradley had "hit" or "struck" him on the head on September 18, 2009, let's revisit a portion of Justice David Prosser's testimony to Dane County Sheriff's Office detectives on July 8, 2011. At 1:30:28, one of the detectives begins asking Prosser whether he was aware of any earlier instances of Justice Bradley "doing something to somebody else in the past," having "had physical contact with somebody." At 1:31:25, the detective gets down to brass tacks:

Detective: Had you witnessed Justice Bradley ever charge at anybody like this in the past?

Prosser: I have never seen her charge anybody once.

Detective: Okay. Is there a reason, uh, are you aware that anything like that's happened? Before [June 13, 2011]?

Prosser: Yes.

Detective: You're aware of an incident specific with Justice Bradley ...

Prosser: Yes.

Detective: ... that she has charged other people. Anything that you've witnessed?

Prosser: Yes.

Detective: Okay. Did that just contradict what you just earlier said? Because I thought you just said you never witnessed anything. Is that correct or am I a little off on that?

Other detective: You're aware of it?

Prosser: [Sighs] I ... [chuckles]. Okay, I'm aware of a story involving another justice. I didn't see that.

Detective: Okay.

Now, recall that Mike Gableman told the detectives on July 5, 2011, that Justice Bradley had "hit" him on the back of the head on September 18, 2008 and that he, Gableman, had never told anyone about this alleged incident prior to his July 5, 2011 interview with Dane County detectives.

On August 31, 2011, reporter Dee Hall of the Wisconsin State Journal discovered that the court had not convened any meetings on September 18, 2008. On September 1, 2011, Gableman released a statement claiming that it was September 18, 2009 that Justice Bradley "struck" him on the back of the head and that all seven justices were present.

Justice Bradley, Chief Justice Abrahamson, and Justice Crooks all affirmatively denied that any such head-striking incident ever took place. On July 18, 2011, Justice Ziegler told the detectives that Gableman had "recently" told her about the alleged head-striking incident but that she had no details of the alleged incident, nor could she be specific about when Gableman told her about the alleged incident.

(Justice Ziegler did not mention the alleged head-striking incident at her first meeting with detectives, which took place on June 30, 2011.)

The obvious question presents itself: Was Justice Prosser referring to the same head-striking incident that Gableman has alleged? If so, for one thing, Justice Prosser says he wasn't there, despite Gableman's statement that all seven justices were present on September 18, 2009.

And if so, for another thing, why did Gableman tell Justice Prosser, and furthermore tell Justice Ziegler, following his meeting with detectives on July 5, 2011, after never having spoken about the incident between September 18, 2009 and July 5, 2011, as Gableman had claimed?

And what about the one remaining justice, Justice Roggensack, who Gableman alleges was also present on September 18, 2009? Did Gableman likewise inform her? Roggensack has not commented so far.

Wisely, in my humble estimation.

In short, did Gableman round up his "conservative" pals on the court to make them aware of the little incendiary device he'd dropped to the detectives on July 5, 2011, to make sure everybody had their stories straight in case the topic arose? Seems like a reasonable question to me.

Aina? Inquiring minds want to know.

How many sharks can one Shark jump?

Clearly, an infinite amount.

Sometimes I swear WisOpinion.com, the local aggregator of Wisconsin's "opinion leaders," links to stuff just for giggles, much like Jerry Falwell used to get invited on the Sunday morning chat shows so the producers and news editors could chuckle at him. Case in point, Rick Esenberg's pretend lament at the state of affairs on the Wisconsin Supreme Court.

Recall that Bill Lueders broke the story Saturday morning. None of Lueders's sources were named, but he obviously had them. By Saturday evening, the Milwaukee Journal-Sentinel had managed to obtain a statement from Ann Walsh Bradley, a justice of the Wisconsin Supreme Court, confirming the substantive details of Lueders's story. The Journal-Sentinel also obtained a statement from the accused, David Prosser, that did not deny some physical altercation had taken place, but rather simply varied from the perspective of Justice Bradley's account.

Peake fantasy

Furthermore the Journal-Sentinel obtained statements from two anonymous sources — who remain anonymous as of this writing — neither of which deny some physical altercation but, as does Prosser, present a different perspective of the alleged altercation. So what does Rick Esenberg, an actual professor of the law, make of all this?

Well, first of all, he denounces Lueders for "an embarrassingly bad piece of work" despite the fact that Lueders's report was confirmed by a justice of the Supreme Court who went on the record to confirm it.

What's embarrassing or bad about it exactly, he doesn't deign to reveal, but the professor's unsupported assertions suit perfectly the obfuscatory narrative Esenberg and his fellow travelers are seeking to forward.

And despite even the fact of Justice Bradley's affirmations, Esenberg pronounces her allegations "fantastical," conveniently overlooking Justice Prosser's self-admitted history of aggressiveness toward Chief Justice Shirley Abrahamson, whom he had previously threatened to "destroy," and who is relatively small in stature and who is nearly a decade the elder of Prosser. Moreover Bradley had warned against Prosser's behavior in emails she released to a Journal-Sentinel reporter months ago.*

Now all of a sudden the latest in an apparent pattern of reckless and intemperate behavior is "fantastical," like a Mervyn Peake novel.

Justice/Gableman

But what is most remarkable — outrageous, really — about Esenberg's own reckless missive is that he suggests the Wisconsin Judicial Commission back off from carrying through its investigation:

[T]he worst thing, I think, would be to frustrate the will of the voters by the imposition of discipline based upon controverted allegations. That would smack of a coup. It would undermine the legitimacy of the Court. [**]

Let's review a couple of things here.

Justice Prosser would be the third consecutive Wisconsin Supreme Court justice subject to an investigation by the Wisconsin Judicial Commission, all of them self-advertised "conservatives," and all of them members of the court that just two weeks ago abandoned bedrock principles of legal procedure, invented from whole cloth a novel fabrication of the court's jurisdictional authority, imported into its written order and opinions alleged facts that were never even mentioned by any party or court as the case wended its way toward the Michael/Gableman Four, and for all intents and purposes untenably reprimanded a careful, review-proven conservative circuit judge for — ironically — supposedly abusing her authority, a reprimand meted out by the same court that had just moments before whipped into existence its own purported authority.

The allegations Esenberg is talking about are those of Justice Bradley who, it bears again repeating, went on the record to confirm the pertinent details of Lueders's "embarrassingly bad" report. And the "controversions" Esenberg is talking about are those anonymous sources quoted by the Journal Communications, Inc. flagship daily newspaper.

Blinka job safe

Not only does Esenberg accord the latter equal weight, he accords them such countervailing authority that, Esenberg reasons, they should not only drive the Wisconsin Judicial Commission's investigation but in fact discourage the Commission from proceeding. All one might say to that is, thank gods Esenberg is not teaching the law of evidence over there.

Esenberg's "will of the voters," it needs also to be recalled, is Justice Prosser's 0.46% margin of victory over challenger JoAnne Kloppenburg, who for her part realized double-digit (not double-decimal point) surges in popular support between February's primary contest and the April 5 general election — especially in the State's most conservative counties.

Thus would it "smack of a coup" were the Wisconsin Judicial Commission, which is charged by State statute to investigate unprofessional behavior among the State judiciary, to pursue its mandated obligations.

It's quite the amazing performance by Rick Esenberg, who has a long and fairly well documented history of amazing performances. It's . . .

Ta Da! Ol' Prof. Rick is right about one thing though:

Lawyers have been worried about the divisions on the Court [**] for some time now. ... No one likes to say too much about it in public for fear of alienating the people who may decide their clients' matters.

Oh, but I'm sure they would like to say plenty about it, and what they would mostly say Esenberg probably wouldn't want to hear. Because the current divisions on the court are directly traceable to Mike Gableman, who none other than Rick Esenberg championed by defending some of the most disgraceful attacks on former Justice Louis Butler's reputation, character, and professionalism, and whose own then-research assistant's gibberish Esenberg is still publishing at the Marquette LS faculty blog.

Esenberg's "worried lawyers" ain't going to forget. It's one thing to get along — and a good thing — but it's quite another to abandon principles because some partisan ideologue is boo-hooing like a sad crocodile.

Your humble correspondent may not be the disinterested academic ivory tower dweller Rick Esenberg is presented as by Journal Communications, Inc.'s panoply of media dispensaries but I surely do know that much.

* There was some considerable right-wing pearls-clutching over Justice Bradley's handing over the emails to the reporter. However, go have a look in the WisconsinEye.org video archives for the court's open administrative conferences and you will find both Justices Prosser and Roggensack releasing sheafs of interchambers emails to the press.

The political right's shameless hypocrisy is quite the spectacle to behold.

** You do not capitalize court here. Capitalizing court here would be a signal for the United State Supreme Court. This from a professor of law.

Gableman story changes today

The story he told to police detectives.

On July 5 (pg. 64 of 70):

Justice Gableman said at this time his mind also went back to September 18, 2008, a date that he recalled because it was his birthday. Justice Gableman said he had been on the court for approximately one month at the time ...

Now on September 1:

I was uncertain as to whether Justice Bradley struck me on September 18, 2008, or September 18, 2009. I knew it was September 18 because that happens to be my birthday. Court records indicate that the seven Justices did, in fact, meet in closed conference on September 18, 2009.

Uncertain how long he'd been on the court.

Gableman also told the police:

Justice Gableman said he has not told anyone about that incident and has not talked about that incident with anyone, including Justice Bradley, after it happened.

Then Justice Ziegler tells the police (page 69 of 70):

She then said, recently Justice Gableman told her about Justice Bradley hitting him on the back of the head, but she said she did not have any details of that and did not know when it happened. Justice Ziegler said she could not be specific on when Justice Gableman told her that happened.

Gableman's interview was on July 5, and Ziegler's was on July 18, so presumably Gableman told her about the September 18, 2009 (née 2008) incident after July 5. But Ziegler hadn't known anything about it.

Even though Justice Zeigler would have been present.*

* And as the ever-vigilant gnarlytrombone points out:

"Not only present, but a witness: 'Justice Gableman said that he believed Justice Bradley was not joking because nobody was laughing at the time.' [page 64 of 70] i.e., they had to have seen it happen to choose not to laugh. Because it was serious. But not memorable."

Who will be the next Wisconsin special prosecutor

On July 5, Mike Gableman, who is a justice of the Wisconsin Supreme Court, told investigators with the Dane County Sheriff's Office that a colleague, Justice Ann Walsh Bradley, hit him on the back of the head.

More recently Gableman upgraded the circumstances of the alleged battery to "struck" — "Justice Bradley struck me," Gableman declared in a press release yesterday. Initially Gableman affirmed to detectives that Bradley did so on September 18, 2008, his birthday, and weeks after his installation on the court. After it was determined that it was impossible for such an event to have taken place, Gableman moved the battery forward one year, to 2009, claiming now to be "uncertain" of the date.

Three justices, including Bradley, Chief Justice Shirley Abrahamson, and Justice Patrick Crooks, have essentially accused Gableman of lying. They all say the incident never happened. A fifth justice, Annette Ziegler, says she didn't know anything about the incident until Gableman told her his tale. The remaining two justices, Prosser and Roggensack, have been understandably mum. If they affirm Gableman's story, then by extension they become parties to the lie that Mike Gableman stands accused of.

Gableman says all seven justices were present on September 18, 2009.

When Justice Bradley accused Justice Prosser of having her in a "choke hold" — and Prosser did confess to having both hands around her neck — the matter spurred a criminal investigation, although the appointed special prosecutor declined to pursue charges. In the meantime, a separate investigation by the Wisconsin Judicial Commission is ongoing.

This blog has certainly never been a fan of Mike Gableman, ever since he began misrepresenting the law back in December, 2007, in furtherance of his nakedly partisan political ambitions. In fact this blog has found Gableman's behavior to be reprehensible. But if there needed to be a criminal investigation into Justice Bradley's allegations, then there needs to be a similar investigation into Gableman's. And obviously the Judicial Commission, which monitors judicial ethics, must likewise investigate.

Because somebody is lying. The Supreme Court is tasked with the enforcement of the legal profession's code of ethical conduct. Its members should be setting the example, and not undermining it.

Ann Althouse, like Justice Prosser, sniffs a turd

According to alleged professor of law Ann Althouse, Bill Lueders, who broke the story Wisconsin Supreme Court Justice David Prosser allegedly seized a colleague, Justice Ann Walsh Bradley, by the neck with both hands, Governor Scott Walker's momentous budget-singing ceremony "was overshadowed by the gigantic turd Lueders felt moved to drop at exactly that moment." Althouse seems hell-bent on discrediting Lueders's reporting, despite the fact Justice Bradley herself has since affirmed it.

Most rational actors would reverse course at that point.

Perhaps Althouse is too demure to outright call Justice Bradley a liar and instead has been busying herself with attempting to discredit Lueders's confirmed reporting and failing rather spectacularly at that project.*

The alleged law professor's scatological metaphor is especially entertaining when one recalls Prosser's election-time fauxtrage at coming upon a reader post at Supreme Court candidate JoAnne Kloppenburg's Facebook, which read, "Stop the turd, vote Kloppenburg."

"Now, am I the turd?," Justice Prosser had actually inquired.

Apparently so, albeit not Althouse's "gigantic turd," as Althouse also assures us Justice Bradley is "significantly larger" than Justice Prosser.

I've heard students at the University of Wisconsin Law School go out of their way to avoid enrolling in Althouse's classes. That's not surprising.

* WPRI's Christian Schneider lauds Althouse for doing "yeoman's work."

eta 01: Fortunately for the rest of us Ann Althouse is not in charge of the Dane County Sheriff's Office. Justice Bradley's allegations may constitute a felony charge. They need to be taken seriously, contra the alleged professor of law's wild and frivolously idiotic speculations.

eta 02: As they are taken by the Wisconsin Judicial Commission.

As mentioned here previously, the Supreme Court is charged with overseeing the ethical behavior and education of the State's attorneys, an authority that is becoming less and less possible to take seriously.

And I don't believe it was ever possible to take Ann Althouse seriously.

WMC authors the Wisconsin judicial ethics rules

Excerpted from testimony before the Wisconsin Supreme Court, with emphases supplied:

The rule in [Caperton v. Massey] was that due process requires a judge to recuse where the judge's impartiality is in question. And in that case, the rule there is that a court must take into account all of the facts and the circumstances surrounding — whether it's spending or a contribution — or whatever other facts are present that are challenging that judge's ability to be impartial.

— Counsel for Wisconsin Realtors Association, 10/29/09

As difficult as it may be to believe, the notorious business outfit Wisconsin Manufacturers & Commerce and the Wisconsin Realtors Association wrote three rules of judicial ethics that were ordered effective by four members of the Supreme Court yesterday.

The order came attached with some more of the court's "writings," this time featuring Justice Bradley squaring off against Justice Roggensack, the latter having helped formed the majority along with Justices Prosser, Ziegler, and Gableman ("the conservatives").

WMC contributed millions to the political campaigns of Justices Ziegler and Gableman, but Wisconsinites needn't pay any mind to the troubling perceptions created thereby, the majority teaches today.

One of the WMC/court's new rules is 60.06(7), which dictates that a judge is not required to stand aside from hearing a case "based solely on any endorsement or the judge's campaign committee's receipt of a lawful campaign contribution, including a campaign contribution from an individual or entity involved in the proceeding."

The other newly created rule is 60.04(8), which confers the same protection upon a judge when an "independent communication" (e.g., one of WMC's infamous issue advocacy advertisements) is produced by a party to the case, or where a party to the case contributed to the production costs of the "independent communication."

(The latter "individual[s] or entit[ies]" are more often than not operating behind a veil of anonymity anyway.)

Amended by the WMC/court is 60.06(4), which already had purportedly prohibited judges from personally soliciting campaign contributions, directing them instead to gathering up cash monies through a committee. Although: "A judge, candidate for judicial office, or judge-elect may serve on the committee but should avoid direct involvement with the committee's fundraising efforts." Emphasis added. It's one of those "aspirational" rules.

Significantly, the amendment allows a judge's fundraising committee (with whose activities a judge aspirationally "should" avoid direct involvement) to drum up cash from contributors "even though the contributor may be involved in a proceeding in which the judge, candidate for judicial office, or judge-elect is likely to participate."

The meaning and potential effect of the latter provision isn't entirely clear. As Justice Bradley (joined by Chief Justice Abrahamson and Justice Crooks, "the liberals") points out:

[U]nder the majority's new rules, which mark a substantial departure from our current practice, judges' campaign committees and perhaps someday even judges themselves will be able to ask for and receive contributions from litigants before the trial has begun and before the judge makes a decision in their case. . . .

Justice Prosser clarified at the January 21, 2010, open administrative conference that indeed the intent is to allow for the solicitation and receipt of a contribution from a litigant with a case currently pending before the judge.

Justice Roggensack, without a hint of irony, pronounced that "Justice Bradley's dissent is a political statement that will foster disrespect for and distrust of the Wisconsin Supreme Court as an institution."

Roggensack criticized Bradley for citing a number of newspaper editorials (nine of them, to be exact, all in substantial agreement) which expressed concern over the majority's move to adopt verbatim rules written by organized corporate interests, effectively "thumb[ing] their noses at the perception of connections between large campaign contributions and the court's integrity, objectivity and credibility," as the Milwaukee Journal-Sentinel had put it.

The majority appears to be largely unconcerned about those public perceptions, and moreover the majority appears unconcerned that those concerns even exist, let alone for those concerns' validity. Nevertheless, perceptions about the courts' objectivity play a substantive role in evaluating due process of law challenges.

A party to a lawsuit is placed in an uncomfortable position where the presiding judge's campaign committee (again, with which the judge "should" not — as opposed to "must" not — be involved) is actively soliciting cash money from the other party. Yet that is precisely a situation the majority's order contemplates and, seemingly, allows.

Justice Roggensack, somewhat inexplicably, claims the new and amended rules are grounded in the right to vote in elections.

But see the well (and rightly so) respected Michael B. Brennan:

Although the judiciary is elected in Wisconsin, it was never intended to directly carry out the wishes of the voters.

The court's remarkable order is available here (.pdf; 28 pgs.).

As usual, more later.

Justice Roggensack is hardly a conservative judge

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

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

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

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

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

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

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

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

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

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

* The primary election is Tuesday, February 19.

The only conservative on that ticket is Ed Fallone.

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

File under: Mike Gableman's date uncertain

Anybody remember these two little ditties?

Who will be the next Wisconsin special prosecutor — 09.02.2011

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

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

And, lest we forget the famous peppercorn ...

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

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

Was I not to have taken him seriously either?

Koch outfit friend of the [Wisconsin Supreme] court

"This relationship is one of those thumbs on the scale." "Prosser should step aside now." "It's a bad idea to stay on the case."

Herewith a "friend of the court" brief filed by the Institute for Justice, Minnesota chapter (a.k.a. "out-of-State agitators"), in the case of Wisconsin Prosperity Network v. Gordon Myse, a challenge to a State of Wisconsin campaign financing rule. The Institute for Justice was "initially funded" by the Bros. Koch and is sustained by 2.4 millions of dollars in Milwaukee's own Lynde and Harry Bradley Foundation generosity.

Wisconsin Prosperity Network is one of ten petitioners to the Wisconsin Supreme Court, which ten also includes such local right-wing luminaries as Republican candidate for Senate Kim Simac, the shouting Tea Party preacher "Apostle" David King, the Koch Bros. front group Americans For Prosperity, and the MacGyver Institute, which maintains what it calls — in what just has to be an ironic, postmodern jape — a "news service."

All are represented by oft-celebrated WISGOP counsel, James Troupis, along with our friend Rick Esenberg, known to profess the law — and lay effusive bouquets on the Bradley Foundation — at Marquette University.

Which is all fine and dandy, I'm sure, quite apart from the fact Supreme Court Justice David Prosser, to whose considered deliberation the petition now falls, retained one James Troupis to preserve Justice Prosser's bid to maintain his position among the "conservative" majority of that court, for the next ten years, and for which Mr. Troupis did zealously advocate (and did promptly bill a cool seventy-five thousand).

Notwithstanding its dubious provenance, is the Koch/Bradley amicus brief meritorious? Perhaps. The First Amendment is — and should be — an imposing barrier to restrictions on political speech. After all, it was none other than Justice Prosser who ruled that a State Supreme Court may not oblige its members, through a reasonable code of ethical judicial conduct, to refrain from slandering their colleagues without offending the First Amendment (a ruling that offends the intelligence).

Nevertheless it's worth noting that one of Justice Prosser's colleagues, Mike Gableman — for it was his unethical shenanigans to which the aforementioned ruling was designed to protect* — publicly interrogated a Wisconsin attorney for her alleged ties to the Open Society Institute, which for present purposes might be seen as a "liberal" corollary to the Koch/Bradley consortium. We thank Justice Gableman for providing the illumination upon his vague paranoias, but we don't expect any similar grilling of the petitioners' counsel during oral argument Setpember 6.

Another unique feature of this case dates to last August, when Justices Prosser and Gableman literally rewrote the Wisconsin constitution.

They did so to articulate a power of theirs which they had just divined, the power to prevent the two other equal branches of government from operating. This they did before even deciding whether the petitioners — or "Apostles," in at least one instance — had even bare standing to sue.

Whereas Article VII of the Wisconsin constitution empowers the Supreme Court to "issue all [injunctions] necessary in aid of its jurisdiction," the two self-advertised conservatives inserted language to the effect of "necessary in aid of deciding whether or not we have its jurisdiction."

More detail here and here.

There's a pretty decent argument to be made that Prosser/Gableman were way out of line, in terms of what "in aid of its jurisdiction" means in the Wisconsin constitution. It contemplates a jurisdiction that has been taken, a case that has been accepted in compliance with the judiciary's enumerated powers of jurisdiction. It doesn't contemplate empowering the court to slap injunctions on the executive branch prior to making any other judicial determinations at all, including whether or not the court itself has jurisdiction over the action in the first place.

If you haven't the jurisdiction, then how can you issue the injunction?

And it wasn't the last time the duo fabricated a novel judicial power.

I have no idea what's so "conservative" about either of them, frankly.

Except that they're "pro-life," or something.

* Here's a short film of Gableman, J. returning the favor, featuring Gableman denouncing, inter alia, "out-of-State influences." Seriously. Special disapprobation is reserved for Jesse Jackson, for some reason.

What exactly set Justice Prosser off

In his own words:

I absolutely have a recollection of [the Chief Justice] saying, 'I may not be done 'til Wednesday.' Now that's the day after the Assembly would have had to vote on this all over again.

Immediately upon hearing that, Justice Prosser tells her, "Chief Justice, I have lost confidence in your ability to lead this court." According to Justice Prosser, his three conservative colleagues, Justices Roggensack, Ziegler, and Gableman, had been getting "very, very antsy" at the prospect of not having their order released in time to save the Assembly Republicans the trouble of voting on the collective bargaining bill again.

For indeed it was the Republican leader in that body, Rep. Jeff Fitzgerald, who publicly warned the court of that ultimatum.

And this, ironically, was a separation of powers case. Separation of powers is a constitutional law doctrine which presumes the independence of the judiciary from the other two political branches of government.

Has any reporter or editorialist mentioned this at all?

The delay, Justice Prosser tells us, came about because over the weekend prior to the altercation in Justice Bradley's office, he had authored a concurring opinion to complement the three other conservatives' unsigned order. Also over that weekend, Chief Justice Abrahamson had written a dissent in counterpoint to the order and was surprised by the appearance of Justice Prosser's concurrence on Monday.

The Chief therefore needed additional time to revise her dissenting opinion to include addressing the issues raised by Prosser that were not present in the order. Justice Prosser claimed Chief Justice Abrahamson shouldn't have been surprised at his concurring opinion because, "The discussion was very clear that there was going to be, that there was at least a possibility, that the majority were going to write more than was in the order, and I'm the natural person to do that. I think anybody with any brains would have known that I was writing an opinion."

Thus even though only "a possibility" existed, "anybody with any brains would have known" he was writing, according to Justice Prosser.

Not exactly the most rigorous logic in establishing that presumption.

Nor particularly charitable where collegiality is ultimately at issue.

Court catching political hell, says former justice

Local blogger lobbies for paralegals to decide appellate cases

Good, comprehensive piece in the Madison Capital Times this morning. The Wisconsin Supreme Court's December 7 public conference truly is a wonder to behold, and what Steven Elbow describes as "rancor among the justices" is accurate.

Understatement, really.

"I don't want to study this so that people out there can kind of lob hand grenades over and over and over at certain members of the court," Justice Prosser said.

Well, I think we know who they might be:

Conservatives on the court are enjoying their 4-3 majority thanks in part to Wisconsin Manufacturers & Commerce, which spent about $4 million on television ads to get Justice Annette Ziegler and Gableman elected in 2007 and 2008, respectively. The big-business lobbying group wrote one of the rules that the court adopted on a 4-3 vote.

More intriguing was Prosser's dig at Justice Crooks (by extension a dig at Chief Justice Abrahamson and Justice Bradley as well):

"It seems to me, Justice Crooks, that four members of the court can do that. You've been a member of the four people on the court who have rammed things through before, and you just don't happen to be part of the four now." He went on to tell Crooks that "it's ridiculous for you to make this argument."

Yet it's three of those "four now" (Prosser, Roggensack, and our old buddy Mike Gableman) who are responsible for the rancor and sarcasm on display at the public conference. It ain't exactly a gracious majority (Justice Ziegler doesn't say too much).

Justice Crooks's argument isn't particularly ridiculous, but it depends on how substantial are the changes to the proposed ethics rules, which is something Justice Prosser refused to elaborate on throughout the two-hour conference despite repeated requests.

It's fair to say they're well beyond being scrivener's errors.

Justice Prosser needs to win an election on April 5, 2011,* if he wants to remain a member of that gracious majority. Sources say Democrats are casting about for an appropriately 110% pro-criminal candidate to challenge him (I'll consider it; Judy Faulkner: call me).

Meanwhile, public cynicism regarding the court is off the charts:

Early last year, a poll of 600 likely Wisconsin voters commissioned by Justice at Stake, a national nonpartisan watchdog group, found that only 5 percent of respondents believe that campaign contributions have no influence on judges' decisions.

Six hundred is a small sample, but still: 95 percent think the State Supreme Court makes decisions based on who and what contributed to their political campaigns. Lovely.

Yet most folks still believe it's a great idea to elect them? That tells you that Wisconsinites are content having a court that places a higher value on cash money than legal principle. This can't be, can it?

As in, "The West Virginia of the North" (now there's a Wall Street Journal editorial you'll never see).

The poll result might reach 100 percent if people thought about why the four conservatives were so eager to adopt the language of proposals that turns out to be so internally contradictory that one of them actually had to rescind his vote in favor of adopting them.

And it wasn't even those justices who noticed: it had to be pointed out to them in a November letter from the two well-connected business consortiums that submitted the proposals in the first place.

Former justice William Bablitch, incidentally, made probably the most impassioned and impressive presentation on the deleterious effects of money-influence to the court in October.

Some may recall the statements Bablitch delivered to former Milwaukee Journal-Sentinel reporter Steven Walters about Chief Justice Abrahamson that were enthusiastically seized upon by Jefferson County Circuit Judge Randy Koschnick during the latter's unsuccessful bid to unseat the CJ earlier this year.

Koschnick was profoundly troubled** that Abrahamson had voted to declare unconstitutional Wisconsin's Chapter 980, which enables the State to commit convicted sex offenders to continued confinement even beyond the length of their original sentences.

Bablitch criticized Abrahamson for that vote ("well out of the mainstream," whatever that means — in 1997, a similar question arising out of Kansas was decided 5-4 by the U.S. Supreme Court***) and Koschnick placed Bablitch's criticism at the top of his campaign website, but neither of them (nor Mr. Walters the reporter, for that matter) bothered to inform anybody that then-Justice Bablitch had also voted to find Chapter 980 unconstitutional.

Pretty slick. But hey, they are lawyers, after all. Perhaps the most effective solution would be to ban them from sitting on the bench.

eta:

I am a former employee of the Wisconsin Supreme Court. I worked for the Court as a law clerk for one of the justices. I USED to be proud of that fact and was never hesitant to mention it at appropriate times. Not true now. I find it appalling that the current Court is bought and paid for by lobby groups and they even have no hesitancy in acknowledging it. For years the Wisconsin Supreme Court enjoyed the highest reputation for its integrity and the quality of its decisions. Now, it is rarely cited by other jurisdictions and is generally considered to be a second rate court. The most recent Justices to be elected are not of sufficient quality to do anything other than write or vote for the legal positions supported by those organizations that paid to put them in office. The only salvation for the Wisconsin Supreme Court is for the U.S. Supreme Court to limit the corruption of the four Justices who currently enjoy a majority on the court.

— "Cynical," an aptly-monikered CapTimes commenter.

* The last two Supreme Court elections were each attended by around 20% of registered Wisconsin voters.

** He was also "troubled" that Abrahamson couldn't meet him for a candidate's debate because she was busy hearing oral arguments.

*** That Court will be entertaining arguments on federal civil commitments for sex offenders next month, but the questions presented there are much different.

Top blogger Ann Althouse gets her source

Inexplicably popular blogger and alleged professor of law Ann Althouse "tweeted" yesterday that reports Wisconsin Supreme Court Justice David Prosser seized a colleague, Justice Ann Walsh Bradley, around the throat were "unsourced." However they were not unsourced but anonymously sourced, a crucial distinction that should have been immediately apparent to a self-styled media critic such as Althouse and furthermore one who is surely familiar with the traditional discretion of the justices' law clerks, who are often privy to the court's private conferences.

The alleged professor of law went on to warn "you people" on Twitter they may be subject to a defamation action, apparently either unaware or forgetful of the substantial burden imposed on public figures (e.g., Prosser) which requires proof a defendant acted in "actual malice."

And all of that addlepated nonsense packed into one "tweet."

Anyway, now Althouse has her source:

"The facts are that I was demanding that [Prosser] get out of my office and he put his hands around my neck in anger in a chokehold," Justice Ann Walsh Bradley told the Journal Sentinel.

Prosser denies everything.

Following which report Althouse adds, "From what I have heard, Bradley is significantly larger than Prosser." What, she's never even seen them?

It's strange that Althouse, who allegedly professes the law in Madison, Wisconsin, has not attended a hearing at the State Supreme Court, which also sits in Madison (just a brief sashay down State St. in fact).

Justices Prosser and Bradley sit side by each (second and third from the left,* respectively, where the latter appears no larger than the former).

And damn near everybody is "significantly larger" than Chief Justice Shirley Abrahamson,** who Prosser previously threatened to "destroy."

Althouse could measure their physical attributes as they ascend the bench, in order to confirm her own "unsourced" assertion that "Bradley is significantly larger than Prosser," whatever that's supposed to mean.

Did not David slay Goliath?

Moreover, Althouse might do well to revisit the law of self defense, if that is indeed among the topics she allegedly professes to law students.

You don't get to strangle somebody who merely raises their hands.

* Conservative hero Mike Gableman is on the far right, where he invents the Supreme Court's jurisdiction from whole cloth and forward slash.

** Not only have I seen the Chief Justice, but I have met her, more than once, and I'm not even an alleged University of Wisconsin law professor.

eta: Much, much more from Wis. Atty. Briane Pagel.

Mike Gableman's eyewitness testimony

"[Gableman] described Bradley as being a little bit taller than Prosser and compared Bradley's stance with Prosser to a famous photo of then-Sen. Lyndon B. Johnson leaning over a shorted [sic], cowed senator. According to the records, however, Prosser is 5-feet-9-inches tall and weighs 165 pounds. Bradley is 5-feet-3-inches and weighs 131 pounds."

Witness credibility issues?

Gableman also claimed that Prosser never came in contact with Bradley's neck despite Prosser's admission that he had both hands on Bradley's neck and "felt its heat." Despite this, Gableman could confidently tell Justice Bradley, "You were not choked." Why should we believe him?

Mike Gableman has lied before. Just ask the Wisconsin Judicial Commission, whose investigation into this altercation is ongoing, despite Justice Prosser's 48-point bold triumphalist WISGOP press release.

What a mess.

Wisconsin Supreme Court quote of the day

Justice N. Patrick Crooks, 08/05/10:

I don't think that the Gableman decision provided a final resolution of the charges that were brought by the [Wisconsin Judicial Commission] and that are pending against Justice Gableman. Why do I say that? Well, I say that because, if you look closely — and I'm sure you have — at what the Judicial Commission did, they did not dismiss the charges against Justice Gableman. They did not do what several of us suggested was appropriate and request a jury trial in regard to those issues. Rather, what they did was suspend the prosecution. And I think that that provides an opportunity for the legislature to act in regard to the appropriate procedure. I certainly think that the allegations against Justice Ziegler led to a final resolution. But I don't see a final resolution with regard to the situation with Justice Gableman. And I think I have to bring that to the committee and that's where Justice Roggensack and I disagree.

What happened is that in front of the panel, the three-judge panel, Justice Gableman through his attorney brought a motion for summary judgment, basically asking that the charges against Justice Gableman be dismissed. The three-judge panel held oral arguments in regard to that motion for summary judgment. And their recommendation to the court was that we should grant that motion for summary judgment. So what comes to us, in my view and the view of the colleagues that have sided with me was pure and simply, we're looking again now at that recommendation for a grant of summary judgment. Summary judgment was not granted. As you know, we split 3-3. The division, in my opinion, caused a deadlock. Summary judgment was not granted. It certainly therefore failed, in terms of the request that summary judgment be granted.

Now, what normally happens — and bear with me for a minute — normally what happens if you're in a civil court situation — and by the way as you know the Judicial Commission, the rules and the statutes in regard to the Judicial Commission talk about operating under the civil rules. But what happens in a normal situation where someone brings a motion for summary judgment and the summary judgment motion is not granted, or [is] denied, or fails, is there's a trial. And three of us, looking at the statutes, looking at the interplay of the statutes, felt that it was appropriate for the Judicial Commission to go back to the point where they'd made a determination of probable cause, which I think they made probably about a year-and-a-half ago, and at that point, take the other route.

The route that they took at the time was the three-judge panel. The three-judge panel approach didn't resolve this issue. And so the other approach that's available, in our opinion, under the statutes, was the jury trial. And we suggested strongly to the Judicial Commission that they take that route. Now, the Judicial Commission, in the statement that they issued saying that they were suspending prosecution of the matter, indicated they felt there was a need for clarification in regard to the statutes. In other words, they didn't think that the procedure was as clear-cut as they would have liked it to have been.

And I will just tell you, speaking not only for myself but I think clearly for the Chief Justice and for Justice Bradley, we certainly would have no objection if this committee, and ultimately the legislature, were to attempt to clarify to the extent desired by the Judicial Commission. I don't think that's necessary, but I certainly don't object to it.

Sounds familiar.

I wonder if our friend professor of law Richard Esenberg took the opportunity to also instruct Justice Crooks, who has been a trial and appellate judge for 34 years, that his and the two other Justices' view of the case's procedural posture is informed merely by "a reference to horn book Civil Procedure" which "does not cut it here." I doubt it.

CFAF "deemed" criminally inept: Part 5

11. State v. Lackershire 2005AP1189-CR

Lackershire is a very interesting case having to do with an unusual set of circumstances arising from "an alleged act of intercourse," as the majority puts it (reminds me of a few girls I used to go out with) involving a mentally and physically challenged adult female — the defendant — and a 14-year-old boy. Lackershire pleaded guilty to second-degree sexual assault of a child and was convicted.

Then some confusion arose as to the circumstances of the alleged act itself, and whether Lackershire was committing sexual assault or was herself the victim of sexual assault. Lackershire revolves on the circumstances of Lackershire's plea hearing, and in particular the information the court must provide at that hearing, the plea colloquy, which is meant to ensure the defendant understands the nature of the crime to which she is pleading and the various potential consequences of the plea.

Much, much more could be said about Lackershire, but for our purposes, Justice Butler voted with the majority to reverse the conviction based on the infirmities of the plea colloquy and wrote separately to discuss the requirements of the plea colloquy to clearly express to the defendant each individual element of the offense pleaded to. CFAF, obviously, does not dispute Butler counting Lackershire "against" himself.

I'm given to speculate that CFAF spent about four seconds on Lackershire, as compared to the up to eight or nine seconds it devoted to some of the other cases on the list provided to them by the Butler campaign.

12. State v. Howell 2005AP731-CR

Another no-brainer (in other words, an easy one for the anti-Butler contingent). Howell filed a motion to withdraw his plea of guilty to one charge of aiding and abetting first degree reckless injury. Butler joined the majority opinion of Chief Justice Abrahamson, reversing the court of appeals, which had in turn affirmed the circuit court's denial to Howell of a hearing on the plea withdrawal. CFAF concurs. Chalk another one up "against" Justice Butler.

13. State v. Post 2005AP2778-CR

The State of Wisconsin, in its capacity of law enforcement, appealed a judgment of the court of appeals reversing Post's drunk driving conviction. This is the famous "weaving around like a drunken man whilst remarkably remaining in your own lane" standard of reasonable suspicion and police traffic stops. Justice Butler, to the great astonishment of his detractors, once again sided with Justices Wilcox, Prosser, and Roggensack in favor of law enforcement and against a criminal defendant.

CFAF, doubtless to its everlasting chagrin, is forced to not dispute Justice Butler's disposition. So saddened to make such an admission, they felt a powerful thirst coming on but were admonished to take the back roads home.

14. State v. Nelis 2005AP1920-CR

A unanimous court affirms all three of Nelis's convictions, for battery, aggravated battery, and sexual assault against his girlfriend. Once again, Justice Butler joins the most conservative members of the court in affirming Nelis's convictions, without even writing separately. Now into its fourth icy cold can of PBR, CFAF silently agrees.

15. State v. Johnson 2005AP573-CR

CFAF perks up as Justice Butler writes for the majority to reverse Johnson's judgment of conviction so convincingly that even Justice Prosser, one of the court's most "traditionalist" members, is completely suckered into joining Butler's reasoning in full. Clearly, Justice Prosser's indefensible act is not the sort of "traditionalism" that Mike Gableman and his surrogates at WMC are appealing to. Or is it?

CFAF, seizing the opportunity to denote Butler's opinion in Johnson "deems w/ Criminal," for some unknown reason alters its notation slightly to "deems with the criminal." This may or may not have been to offer grammatical penance for "This the same case as #4." Then again, that depends on what the meaning of is is, is?

CFAF is denied any further alcohol.

16. State v. Townsend 2003AP000429-CR

Townsend is the second case CFAF removes from Butler's list of 62. "This was a petition for review and not included by CFAF," reads CFAF's ambiguous message. A bit later on, CFAF clarifies to some extent: "Cases 16, 23, and 52 were not considered by CFAF because they were dismissed improvidently which means the court decided against reviewing them."

Really then. Because also at Justice Butler's interview with the Milwaukee Journal-Sentinel editorial board, he mentioned that if all the petitions for review that the court doesn't accept are taken into consideration, then he decides against criminal defendants 97% of the time. So is CFAF tacitly acknowledging that Butler is correct on that account, since they've never challenged it, and that Townsend should be reckoned into that calculation? If not, because it has to go somewhere, where do they want it put? In neither pro- nor anti-criminal limbo?

Well, let's see what the per curiam (an unsigned decision) court got up to here. The reason the court essentially declared, "Screw this," is because, despite having heard oral argument on the case several months earlier, in the meantime old Townsend had made like the birds and flocked off. Or, as the courts like to say, he absconded. From custody. In Illinois. Or something.

Nevertheless, Townsend was in the process of challenging his judgment of conviction and the court's decision had, among a number of other effects, that of leaving Townsend's conviction in place. That is to say, Butler's participation in Townsend was not "pro-criminal." So is it any wonder why CFAF doesn't want it included in Butler's percentage? But CFAF doesn't explain why.

So, where to put Townsend? Because, after all the docket number contains the -CR suffix, and that is VERY VERY IMPORTANT. On the other hand, if CFAF tosses Townsend back into the "declined review" pile, then it would increase Justice Butler's 97% "anti-criminal" figure, and CFAF can't have that. So I'd like to help out CFAF, but I don't see any reason why the case shouldn't stay on Butler's list. Just because CFAF says it shouldn't be there, without having either briefed the issues or presented oral argument ... sorry about your luck, CFAF.

17. State v. Jensen 2004AP002481-CR

Ah, the famous case State v. Jensen. I'm not going to discuss its details any more than I already have at this point. This is the case pursuant to which our dear friends at WMC referred to the Confrontation Clause of the Sixth Amendment as a "needless technicality." I have no idea why it's on Butler's list of 62 but not on the more recent list of 70. Presumably it was removed for some reason, as opposed to an error. Maybe because it came directly from the circuit prior to the completion of Mark Jensen's trial and that when the Supreme Court decided Jensen, there was no conviction, let alone a "criminal." So it's hard to say, strictly speaking, how CFAF could even attempt to claim, as it has, "CFAF deems with the criminal."

Given the case's procedural posture at the time the Supreme Court decided it, such a categorization is preposterous. It probably should be on Butler's list, at least if I'm to follow my own reasoning in 16. above but still ... I think it's absurd to categorize it "pro-criminal" or "pro-State" or what have you.

Given the the strong likelihood the United States Supreme Court will reach the same conclusion as did Butler did later this year, would CFAF issue a public statement condemning Justices Roberts, Scalia, Kennedy, Thomas, and Alito as "pro-criminal" Justices? I wouldn't hold my breath. I'll deal with it when I get to the numbers.

18. State v. Bruski 2005AP1516-CR

Bruski, facing four drug possession charges, tried to bring a Fourth Amendment challenge against evidence obtained during a warrantless search, claiming that he had an expectation of privacy, which a defendant has to prove before a court recognizes the defendant's standing to continue with the Fourth Amendment argument. The circuit court granted his motion, the State appealed, the court of appeals reversed the circuit court, the defendant appealed, and the Supreme Court affirmed the court of appeals. No standing for you!

Justice Wilcox wrote the majority opinion, and Justice Bradley dissented, joined by Chief Justice Abrahamson. At this point, the anti-Butler forces would expect Justice Butler himself to appear, either writing a separate dissent detailing his own considered analysis of search and seizure doctrine, or else joining the two liberal dissenters.

But this one was a piece of cake for Butler, evidently, because he simply signed on with Wilcox and the other conservatives. I'm not just rambling aimlessly here; that's a very important consideration, in attempting to evaluate Justice Butler's jurisprudence. Because overall, he plays it right down the middle, pretty much, and these charges of activism and "pro-criminal" are really, at their base, made-up nonsense. They really are.

CFAF agrees that Butler's call in Bruski was not "pro-criminal." Fine. Only one problem; like in Jensen, there was no conviction when Wilcox turfed Bruski's motion. So we're going to have to fix that one too. If that's the reason why the Butler campaign removed Jensen but left Bruski on the list of 70, then we need a decision.

Who should I call, the "activist," "pro-criminal" Justice Butler, or "traditionalist" hero, former Justice Wilcox? Eh, they'll probably give me exactly the same "judicially conservative" opinion, as they did in the case itself.

19. State v. Muckerheide 2005AP81-CR

Unanimous court, opinion by Justice Crooks. No separate words from Butler. Two convictions, neither were reversed. Interesting yet rather morbid argument.

Muckerheide was convicted of homicide by motor vehicle while intoxicated and he argued that the decedent, Muckerheide's passenger, would have died whether Muckerheide was intoxicated or not, and that the passenger grabbed the steering wheel while Muckerheide was driving, which caused the accident. But the only evidence Muckerheide had that the (now deceased) passenger grabbed the wheel was that the said passenger had grabbed the wheel in another vehicle previously, and the dude who was driving that vehicle, the dead fellow's father, was the only one who could testify to that "other acts evidence." But Crooks & Co. refused to allow that testimony.

Anyway, CFAF agrees with Butler characterization of the case and in any event probably fell asleep about three run-on sentences ago.

20. State v. Parent 2005AP661-CRNM

Here we have our next disputed case, since Butler claims it towards his 75-ish% and CFAF "deems w/ criminal." Of all the cases on any of the lists all added together, the immediate effect of Parent is quite possibly the most innocuous in the court's history.

Parent simply allows the defendant to view (and not even copy) documents from his pre-sentencing report in order to potentially maybe initiate the preparation of an appeal to his conviction. Also, the unanimous court placed a number of additional restrictions against the defendant, including that he be required to keep whatever information he finds confidential, and that the circuit court retains discretion to redact the documents in order to protect the privacy of individuals named therein.

Parent is a lengthy opinion but nearly all of it is devoted to questions of interpreting State statutes upon which every member of the court agrees.

Parent's three convictions are simply mentioned during the standard reiteration of the case's procedural posture and there is absolutely not the slightest hint of any member of the court even addressing the merits of how Parent's conviction was even obtained. In other words, all of Parent's convictions remain fully intact, and Parent himself has a long, long way to go before he can even begin to challenge them.

To "deem" Parent as "w/ criminal" is simply ludicrous. If anything, it's pro-criminal discovery, and it applies to everyone, even to the innocent who may be wrongly charged with a crime. Such people are clearly not "criminals."

Forward!

ttfn

To part 6 ...

Wisconsin Supreme Court on civility and public trust

This Thursday, the Wisconsin Supreme Court will convene in public for a conference devoted to, among other things, Civility and Public Trust and Confidence. The court has been in the news lately because some of its members don't get along too well. Some observers have wondered why.

Here's a clue. This is Mike Gableman, who lied during his political campaign in 2008, and who still has a civil complaint alleging ethics violations pending against him, speaking to a rubber chicken event in Racine County last March. Much of Gableman's harangue is devoted to praising controversial Justice David Prosser, who Gableman claims is "slow to anger" and only gets mad "when there is some unjustness."

Around 7:20, Gableman gets to insulting his fellow justices:

A judge or a justice should not misuse their position, their office, their temporary office of the court, to supplant or replace the law with their personal, political, or social views. I saw that happening in Madison four years ago when I decided way up in Burnett County that it wasn't me who was failing to understand what Shirley Abrahamson, Ann Walsh Bradley, Pat Crooks and Loophole Louie [sic — it's Louis, rhymes with Lewis; as you can see and hear, Gableman is unrepentant of his judicial ethics violations] Butler were doing to the law [laughter]. It was they who were failing in their sacred vow to follow the law as written and not substitute their own political, social, and personal views for what they think the law ought to be. Thank you [applause].

Notice how Gableman says "Thank you" before the applause starts.

This is not Gableman the political campaigner, this is Gableman the justice of the Supreme Court — where he claims to preside "by the grace of God" — although the roles are indistinguishable in Gableman's case.

So there there you have Gableman accusing his colleagues of "failing" in their professional obligations, and yet some people are still wondering why there is personal tension among certain factions within the court.

And ironic accusations they are, considering Gableman's own behavior.

Gableman returns to praising Prosser, who defended Gableman's ethical violations and indeed told the people of Wisconsin to "get over it" during a debate with JoAnne Kloppenburg, who challenged Prosser for his seat on the court and came within half a percentage point of winning it:

Former [Wisconsin] governors Tommy Thompson and Patrick Lucey, two who you probably cannot find with more divergent political views, are the co-chairmen of his campaign.

Which is funny because just a couple of days later:

Lucey "resigned as honorary co-chair of Justice David Prosser's re-election campaign and endorsed his opponent, State Assistant Attorney General JoAnne Kloppenburg. Lucey said in a statement that he has followed Prosser's campaign "with increasing dismay and now alarm," adding that "Prosser has lost that most crucial of characteristics for a Supreme Court Justice — as for any judge — even-handed impartiality." Lucey also cited Prosser's "disturbing distemper and lack of civility that does not bode well for the High Court in the face of demands that are sure to be placed on it in these times of great political and legal volatility."

That's right, Prosser's own campaign chairman abandoned ship.*

More recently Gableman came up with a tale that Justice Ann Walsh Bradley, whose neck Prosser admitted putting his hands around during a disagreement in her office on June 13, 2011, had "struck" him on the back of the head either in 2008 or 2009 (Gableman told Dane County police detectives it was 2008, then changed the year to 2009 after Wisconsin State Journal reporter Dee Hall noticed that there were no meetings of the court on the date Gableman had alleged in 2008).

Following Gableman's testimony to the Dane County police detectives, he apparently forewarned his other "conservative" colleagues on the court that he had so testified. Justices Prosser and Annette Ziegler both told the detectives they had no other knowledge of the alleged incident, despite Gableman's assurances that all seven justices were present. Three other justices have affirmatively denied such an event took place. The remaining justice, Patience Roggensack, has declined to comment.

This space has wondered — as there was a criminal investigation undertaken into the alleged physical altercation between Justices Bradley and Prosser — why there hasn't been a separate investigation into Gableman's allegations. Or whether the Dane County Sheriff's Office would take notice that Mike Gableman may have been misleading them.

Still wondering.

* Somewhat reminiscent of then-Dodge County district attorney and now-Circuit Court Judge Steven G. Bauer's abandoning of Gableman.

Wisconsin's conservative activist justices

Concludes Wisconsin Supreme Court Justice David Prosser:

[T]he court clearly has jurisdiction to take all actions necessary to consider whether to exercise its original jurisdiction over the substance of the matter. Wis. Const. Art. VII, § 3 (may hear original actions and proceedings) ...

Emphasis added.

What the Wisconsin constitution says is:

The supreme court has appellate jurisdiction over all courts and may hear original actions and proceedings. The supreme court may issue all writs necessary in aid of its jurisdiction.

An original action is one filed directly to the Supreme Court. Original actions are exceptional to the Supreme Court's primary constitutional roles as a court of appeals and as the superintendent of lower courts. If and when the Supreme Court accepts an original action, it has "found" that exceptional original jurisdiction.

In the present case, the Supreme Court has yet to find original jurisdiction. Nevertheless, last Friday the court issued a writ of injunction against the defendants, who comprise an executive branch agency of government, barring them and it from enforcing a rule that has enjoyed at least the tacit approval of the legislative branch.

So, does that writ of injunction fall within the constitutional purview described by "in aid of [the court's] jurisdiction" where the court hasn't even taken jurisdiction of the case?

Justices Prosser and Gableman seem to think so, although they were inspired to rewrite the State constitution — "all writs necessary" becomes "all actions necessary" and, most significantly, "in aid of its jurisdiction" becomes "whether to exercise its jurisdiction" — in order to judicially reach across both separation of powers divides.

Those are quite expansive readings, which judicial conservatives otherwise claim to eschew on judicially conservative principles.

And the two conservative justices argue that because the legislature has authorized the court by statute to order (only) legal briefing and argument before it decides to find original jurisdiction, that such orders are the functional equivalent of ordering a writ of injunction.

But an injunction is a legal remedy that provides relief to a party, a different category from orders the court might issue to the parties to help facilitate the court's understanding of the facts and law at issue in the case, which are all that the statute specifically authorizes.

Is this writ of injunction "in aid of" jurisdiction the court has yet to even exercise? Is the condition of still deciding whether to exercise jurisdiction the same thing as actually exercising jurisdiction?

Justices Prosser and Gableman say yes, but don't — imho — explain why very convincingly.* Justices Roggensack and Ziegler say yes as well, but don't join Justice Prosser's justification, giving none.

It's not an easy question, and the Wisconsin constitutional language "in aid of" jurisdiction doesn't seem to so easily or readily translate to the judicially created language "whether to exercise" jurisdiction.

At least, it doesn't translate so well for the purposes of this particular writ of injunction which, as Justice Bradley in dissent (joined by Chief Justice Abrahamson and Justice Crooks) observes, was ordered "even though the petitioners have not requested it."**

* e.g., Justice Prosser construes a statute designed to grant a civil right to citizens as instead the granting of power to the judiciary. Such a reading is no hallmark of the qualities of judicial modesty and restraint for which conservative judges are often applauded.

Additionally, Justice Prosser cites two prior Wisconsin cases for support: One where an injunction was granted in advance of the court finding jurisdiction, and one where an injunction was denied in advance of the court finding jurisdiction (but that court issued a variety of different orders other than injunctive relief to a party).

In the former case, the request for injunctive relief was made as a separate filing from the petitioner's request for original jurisdiction, unlike the present "in the alternative" situation (see ** below).

Nor does that case contain any discussion of the "in aid of" provision in the constitution nor whether the writ of injunction issued was in conformance with the constitutional language. So in effect Justice Prosser's citation stands only for the proposition, 'We did it once before.' Associate Justice Clarence Thomas, for one, would likely never abide with such an unqualified reliance on stare decisis.

** The petitioners did request it, but only "[i]n the alternative" to their primary demands, which are that the Supreme Court find original jurisdiction to accept the case and then pronounce the Government Accountability Board's rule unconstitutional.

Therefore if the Wisconsin Supreme Court does decide to find original jurisdiction sometime next month, the court will have granted both of what were presented as two "alternative" requests.

And my own inner strict constructionist is telling me now that "alternative" means "either one or the other" and it's also reminding me that the logical operator "or" can rarely be mistaken for "and."

Justice Ann Walsh Bradley, relative giantess

Wisconsin Supreme Court Justice Ann Walsh Bradley, shown with two representative members of family Hominidae for physiometric purposes. Reportedly right-wing commentators, led by alleged law professor Ann Althouse and Milwaukee radio belligerent Charlie Sykes, are engaged in proposing an alternate theory to Justice Bradley's allegations against Justice David Prosser, that the latter is a frail, elderly man and the former an imposing, aggressive threatenor. Of course it's ridiculous, but what do you expect from them.

h/t Anonymous 8:46 A.M. (Welcome Firedoglake readers!).