Van Hollen: Governor Doyle saved us a mint

'Scott Walker is not the boss of me.'

Here's Wisconsin's Attorney General J.B. Van Hollen on the YouTubes jawboning with the Fox News Network's Greta Van Susteren about how excited he is to have the approval of his current governor, Scott Walker, to join a Florida lawsuit challenging the constitutionality of the Patient Protection and Affordable Health Care Act.

"As a practical matter," advises Van Susteren, "it doesn't cost you a dime to join in this, or even if you didn't join in it and the States won, you would reap the benefits of it, at least the benefits as you see it," while AG Van Hollen nods in agreement throughout.

As to Van Susteren's inquiring what substance Van Hollen can bring to an action that is already this far along, Van Hollen claims a "critical mass" is achieved where 26 U.S. States are listed as plaintiffs.

That's nonsense, obviously, as more parties voicing the exact same argument doesn't confer on that argument any additional validity.

In fact the AG just got done stipulating to as much with the Fox host.

Van Hollen goes on to plead that "it could have been political suicide, quite frankly" when he asked the former governor of Wisconsin if he could join the suit. That executive dismissed Van Hollen's request way back in March 2010, calling it "a frivolous and political attempt to thwart the actions of Congress and the law of the country."

Turns out Democratic Governor Jim Doyle saved Wisconsin a pile of time and money, according to Van Hollen's own nodding admissions.

And apparently the attorney general is now busy making the rounds — of Fox News, because he'll be back on there again this morning.

Bonus video: JBVH yelling at a Tea Party. "Fight ... kill ... fight."

J.B. Van Hollen for U.S. Senate Archives

A selection:

03.28.11 Van Hollen voids all pre-1901 law in Wisconsin
02.01.11 Health care reform dead, exulted Van Hollen*
11.04.10 No point to Van Hollen joining HCR suits now
07.12.10 Wisconsin AG dons national prayer day suit
08.21.09 J.B. Van Hollen attacks a statute
04.21.09 Van Hollen barks out a memorandum**
06.03.08 Isn't remote jurisdiction still jurisdiction?

* Van Hollen never exulted "It's Alive!" when Vinson stayed his order.

** More on Van Hollen's open carry memo, which caused a ruckus.

Van Hollen did do something, paper insists

AG didn't do nothing, assures Journal-Sentinel fact checking team

I thought Democratic candidate for attorney general Scott Hassett was a bit over the top in the manner he went after incumbent Republican AG J.B. Van Hollen in the "sexting DA" affair too but Jeez, can't you let a guy indulge in a little hyperbole now and then? How about Van Hollen didn't do any of the things that Scott Hassett would have done as attorney general? I'm reasonably sure that was Scott Hassett's point.

And the PolitiFactWisc team performs a little editorial chicanery of its own. What Hassett's statement reads is this: "Even more troubling [than Kratz's antics] are reports that JB Van Hollen knew about this case for nearly a year and did nothing about it." But the PolitFactWisc version truncates that to, "JB Van Hollen knew about this case for nearly a year and did nothing about it." So it was "reports" that Van Hollen did nothing which Hassett was referencing.

Was Hassett being cute by throwing in "reports" and then directing his ire toward the alleged inaction revealed by those "reports"? Of course he was being cute, yet it is — and was meant to be — one step removed from making his own factual allegation against Van Hollen.

But it's no more cute than the PolitiFactWisc crew deliberately excising that germane consideration from Hassett's statement.

PolitiFactWisc's reiteration of the sexting DA's ongoing imbroglio's timeline is useful but it sure seems like a lot of trouble to go through to "check a fact" that wasn't really being presented as one, especially when you need to manipulate the claim you purport to be checking.

Photo: AG Van Hollen models an ostentatious concealed carry outfit.

Van Hollen barks out a memorandum

The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose.

— Wis. Const. art. I, § 25

Whoever, in a public or private place, engages in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance is guilty of a Class B misdemeanor.

— Wis. Stat. § 947.01

Puzzlement may be the order of the day for the prosecutor class, following the release of Wisconsin Attorney General J.B. Van Hollen's "educational and informational" advisory memorandum (.pdf; 5 pgs.) on open carrying.

The AG was asked by district attorneys to weigh in on the apparent tension between the State constitutional amendment* preserving the right to keep and bear arms and the disorderly conduct statute, in particular the latter's "otherwise disorderly" element, assuming the open carrying of firearms is neither profane, indecent, etc.

The memorandum issues in the wake of the case of State v. Brad Krause, discussed here earlier. Mr. Krause was gardening while pistol-packing in West Allis, for which he was charged with disorderly conduct, but the charge was dismissed (and rightly so, IMHO).

Opines Van Hollen:

For example, a hunter openly carrying a rifle or shotgun on his property during hunting season while quietly tracking game should not face a disorderly conduct charge.

So far, so self-evident.

But if the same hunter carries the same rifle or shotgun through a crowded street while barking at a passerby, the conduct may lose its constitutional protection.

I'm not a hunter, but I'm envisioning the "carrying" here in the act of "tracking game" as being poised, cocked, and ready to discharge.

The only differences between Van Hollen's scenarios are their locales, and the "barking."

My Concise OED tells me "barking" means making "a sound resembling this [sharp, explosive] cry ... of a dog, fox, etc." Again, not being a hunter, I don't know whether such cries are intended to attract or repel those creatures or any other potential quarry.

What to make of this? A hunter may carry a loaded shotgun through a crowded street, as long as he doesn't "bark" at passersby? That is, he may speak or even cry, so long as his cries are not sharp or explosive? Or both sharp and explosive?

Or is it the crowded street that arguably negates the constitutional protection, notwithstanding the accompanying cries? And what human population density per square yard constitutes "crowded"?

Van Hollen continues:

The same concepts should apply to handguns. The state constitutional right to bear arms extends to openly carrying a handgun for lawful purposes. . . . If, however, a person brandishes a handgun in public, the conduct may lose its constitutional protection.

Now I'm lost. Perhaps the concept has remained the same, but the facts are altered dramatically for more easily portable weaponry.

"Brandish" means "wave or flourish as a threat or in display," the least disorderly of which would be "flourishing in display."

And display, obviously, is synonymous with open carry.

To flourish is to make an ostentatious gesture, the determination of which ostentation, I suspect, could be wildly subjective given, for example, the hot pink Glock 19 pictured above, which is practically an ostentatious gesture in and of itself.

So a Wisconsinite may, with impunity, stiff-arm a cocked and loaded (but non-ostentatious) handgun up and down Water St. of a Friday evening so long as she doesn't "bark" at the other pedestrians?

I doubt it, as such conduct would tend inexorably to a disturbance.

Ultimately, Van Hollen's answer to the question as to when law enforcement may seek a disorderly conduct charge against an open carrier of a firearm is: 'It depends upon the totality of the circumstances.' But they probably already knew that.

Just as they already knew that open carrying per se is constitutionally protected, because the only direct statutory restriction on the constitutional right has to do with concealed carrying, and the Wisconsin Supreme Court [see link**] has already determined that the concealed carry statute doesn't offend the State constitution.

So it's unclear how exactly Van Hollen has clarified the discussion. Indeed, he may have succeeded only in further unclarifying it.

In any event, open carry advocates appear to be pleased. One of them told the Milwaukee Journal-Sentinel that open carriers aren't out to cause a disturbance, but rather to make a political point, "just like a same sex couple going out of their way to hold hands in public."

Except I don't believe that people have to go quite as far out of their way to hold hands in public*** as does a hunter in carrying a cocked and loaded rifle along a crowded downtown thoroughfare.

In the meantime, be sure to keep an eye out for those tightlipped urban sportspersons brandishing political statements.

* The Second Amendment doesn't apply to Wisconsin. Yet.
** Its application to particular circumstances is another matter.
*** Okay, so that guy had to go all the way to Caracas Riyadh.

No point to Van Hollen joining HCR suits now

Sort-of-newsy item:

Wisconsin governor-elect Scott Walker has said he would let AG Van Hollen go ahead with the health care challenge.

The current governor should have let Van Hollen go ahead months ago but at this juncture, Van Hollen's joining one or more of the suits is largely shambolic, as much of the work has already been done.

The most important of the challenges, State of Florida v. DHHS, is shortly headed for the 11th Circuit Court of Appeals in Atlanta.

It's important because the district court resoundingly rejected the federal government's ex post facto rationalization that the so-called individual insurance mandate is authorized by Congress's power to tax. It seems to me not unfair to speculate that the feds devised the argument because there is such scant legal support for the proposition that the Interstate Commerce Clause — which empowers Congress to "regulate Commerce ... among the several States" — authorizes Congress to compel by coercive penalty the bringing into existence of the very commerce Congress might then regulate.

That tactic appears precluded by the plain text of the Constitution.

If the district court's ruling invalidating the tax power argument survives its appeal, then the individual mandate is in serious trouble. And even if the 11th Circuit does reinstate the validity of the federal government's power-to-tax argument, the Supreme Court as currently comprised — where this case is inevitably destined — will not be sympathetic to either the taxing or commerce power justifications.

Suspicion

Another significant challenge is contained in Virginia v. Sebelius, whose litigation is similarly well underway. The plaintiff's principal lawyer, Virginia AG Ken Cuccinelli, was recently observed dictating to Fox News's Greta Van Susteren what sounded suspiciously like a verbatim rehearsal of a blog post that appeared at this location nearly one year ago, so I have a hard time disagreeing with him.

So far the only court that has provided a positive result for defenders of the individual insurance mandate is one in Michigan, but that decision relied on an untenably selective reading of Gonzales v. Raich, the Supreme Court's most recent set of pronouncements on the (yes, "evolving") meaning of the Interstate Commerce Clause.

While it will be argued that Raich defines the Commerce Clause so broadly such that it leads in the direction required to support the validity of the individual mandate, at least in that case there was commerce already in existence — marijuana plants growing in a Californian's apartment, which are presumed to have value in commerce — over which the federal regulatory powers extended, no matter how attenuated was the regulated object from the regulation.

So I wouldn't expect the Michigan decision to stand.

Notorious

And if Scalia gets a crack at its interpretation of Raich — whose majority opinion Scalia did not join but rather wrote separately to agree with its result according to what he claimed was his "more nuanced" understanding — I would expect him to react violently.

And then there is the rejuvenatedly notorious Clarence Thomas, who will take the opportunity to reverse nearly every Commerce Clause decision since and including 1819's McCullough v. Maryland.*

Whatever the ultimate disposition in the ongoing set of cases, Van Hollen's ceremonial participation will have little effect either way.

Attorney General Van Hollen's energies will be better spent joining Obama and his press secretary in defending Congress's enumerated power to order the president to declare a "national day of prayer" annually in America because clearly, that legislative authorization is discoverable throughout Article I, Section 8 of the Constitution.

Besides, it's an actual State of Wisconsin case and we're still waiting for the 7th Circuit Court of Appeals to schedule the oral arguments.

* Justice Thomas wouldn't care much for this Beloit high schooler's t-shirt either, and moreover would likely condone the local authorities' taking the young man out back and having him birched.

See also: Liberals in denial.

MKE's Chief Flynn: The fallout continues

When last we checked in with WTMJ radio's a cappella vocalist Jeff Wagner, he was experiencing some difficulty engaging with the infamous "baby mama" court of appeals opinion of January '09.

Now he's claiming that Milwaukee Chief of Police Edward Flynn has "ordered his officers to ignore the law."

This is pure fantasy, of course.

Wisconsin Attorney General J.B. Van Hollen's celebrated gun memo is no more "the law" than is this here blog post. Strictly speaking, Van Hollen's memo isn't even a "legal opinion," as Jeff Wagner calls it.

It's an "informal Advisory Memorandum," and it includes an express statement distinguishing it from the AG's opinions mentioned in Wis. Stat. § 165.015(1). It's meant only to be "educational and informational" (and the former purpose has turned out to include for a number of delightfully unintentional effects).

Which is especially noteworthy because Jeff Wagner himself links to a WTMJ news item that depicts Flynn as telling Milwaukee police officers to "ignore the memo." So how Wagner gets from there to "ignore the law" remains an ineffable mystery of construction.

Recall that the memo's function was simply to expound on whether openly carrying a firearm might per se warrant a charge of disorderly conduct, which is ultimately a question for the district attorney.

How police officers in the field deal with Wisconsinites wandering about armed on city streets is a different story. Indeed, the memo wasn't even addressed to police officers, so in that sense alone, Chief Flynn's advice to the rank and file is perfectly appropriate.

It's like saying, 'Don't read John Chisholm's inter-office mail.'

Anyway, Jeff Wagner's recent pontifications are in service of congratulating the Deputy Chief of Police in Waukesha, Wayne Dussault. Dussault, enthuses Wagner, is a law enforcement officer who "actually believes in following the law." As opposed to Edward Flynn, apparently, who actually doesn't believe in following the law.

What Dussault told the Milwaukee Journal-Sentinel, however, is that carriers of "exposed and holstered handguns" will only be "observ[ed to] see if they're committing any actions that draw suspicion."

Observed for how long, for which actions, and by how many officers, he doesn't say. (And prospective open keepers and bearers may want to further bear that potential commitment of LE resources in mind.)

Except among the several hypothetical scenarios proffered by Van Hollen, Dussault's relatively innocuous situation won't be found. Instead Van Hollen contemplates, for example, a shotgun-bearing hunter "quietly tracking game" along a "crowded street" who may or may not be overheard "barking" at passersby.

And that manner of activity, affirmed Dussault, "would be approached differently." Who knows, the said urban hunter may even have to be "taken down," as Chief Flynn suggested.

Like AG Van Hollen himself memorandum'd, by way of citing a series of U.S. and Wisconsin Supreme Court decisions governing police action obtaining from legally permissible inferences of reasonable suspicion, it "depends on the totality of the circumstances":

Even though open carry enjoys constitutional protection, it may still give rise to reasonable suspicion when considered in totality. It is not a shield against police investigation or subsequent prosecution.

And the cases teach that among such circumstances are those where a suspect may warrant being "taken down." That is, after all, the memo's bottom line: It depends. But everybody already knew that.

One should be grateful to Chief Flynn if not for his demonstrated commitment to maintaining public safety on the streets of Milwaukee, then at least for his ability to prod the local conservative blogogentsia to even more fantastical flights of silliness.

P.S. And that would be Townes Van Zandt's Pancho and Lefty. A poncho is a Peruvian Snuggie™ where Willie Nelson stashes his bud.

Health care reform dead, exulted Van Hollen

Reports The Economist, among many others. Wisconsin's Attorney General J.B. Van Hollen's unseemly triumphalism raised an unholy ruckus the other day after a federal judge in Florida declared Obama's health care act unconstitutional. Consternation was high over Van Hollen's remarks, especially within liberal quarters.

But you know what? J.B. Van Hollen was/is correct, even though the PPACA's demise may be short-lived.* The Constitution is clearer on this point than it is on the question of whether the individual insurance mandate violates the Interstate Commerce Clause:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

"And" is the operative word there, and obviously the U.S. District Court for the Northern District of Florida is among those ordained and established by Congress (much to its current regret, perhaps).

In other words, if the Supreme Court can slap on an injunction preventing the enforcement of federal legislation — and it can — then so might a district court. The judicial power inheres in both equally.

While Judge Clyde Roger Vinson did not expressly grant the injunction the plaintiffs — who included J.B. Van Hollen despite his Johnny-come-lately presence in the case caption — sought, he instructed the federal government his order was tantamount to an injunction, relying instead on the federales' good faith in treating it as such.

JBVH's basking in the press glow may have been provocative and, frankly, annoying,** but he's not wrong as a matter of law.

* Odds are good Obama will win a stay over Judge Vinson's ruling pending an appeal to the 11th Circuit. In the meantime the administration's own defiant pronouncements rest on shaky grounds.

** The AGs of Ohio and Texas, for example, were considerably more circumspect and, in this observer's estimation, more professional. I understand the AG's is a partisan office but it needn't be so deliberately blatant — and for many people, insensitive — about it.

Death of irony — J.B. Van Hollen edition

J.B. is the epitome of a partisan hack, no matter how much he tries to hide it. That's not to say some of his political opponents have not been equally biased on the other side.

— Daily Cardinal

Even more biased, I reckon.

Van Hollen declined to defend the Wisconsin domestic partnership provision because he was personally opposed to it as a matter of policy. In other words, Van Hollen acknowledged essentially that it would find a more effective defense from legal counsel hired outside his office. The additional State expense is relatively negligible.

That's a perfectly appropriate rationale and equally reasonable from a political perspective. Had Van Hollen represented the State in that case, he would have been criticized on precisely the same grounds he gave for removing himself: that his heart wasn't in it, so to speak.

Or worse, that he was engaged in an unethical act of sabotage.

It was an honest move on Van Hollen's part and liberals should be congratulating him for it, not using it to call him a "partisan hack."

Maybe he is. But not on account of that.

For Gableman, every case is a controversy

Somebody has finally written something of two motions* currently before the Wisconsin Supreme Court, requesting that embattled judge Michael Gableman stand aside from participating in a criminal appeal, the review of which the court accepted last year.

One of the motions is directed toward Gableman himself — which he will almost certainly deny — and the other asks the court to consider Gableman's recusal on due process of law grounds, the factual basis for which constitutional argument is his well documented behavior during an election in which roughly 9.5% of Wisconsin's eligible voters managed to position him on the far right of the high court bench.**

David Ziemer in the Wisconsin Law Journal describes the broad contours of the motions in a report that also features a couple of remarkable observations from some famous local conservative Republicans. First there is this non sequitur issuing from Marquette University law professor Rick Esenberg:

Esenberg said the Massey case and the issues raised by Henak differ, which is why the motion has little chance of success.

In fact "the Massey case" (Caperton v. A.T. Massey Coal Company, Inc.; see the SCOTUS Wiki) is mentioned only tangentially in one of the motions, which expressly acknowledges that the questions presented by both cases are merely "similar," in that each involves third party contributions to judicial campaigns.

So it's less than clear why Allen's motion has "little chance of success" simply because it's different from Caperton. Not only that, but Caperton hasn't even been decided yet, so nobody knows what — if any — direct application it will have to Gableman's latest imbroglio.

According to Ziemer, Esenberg claims that "virtually all judicial candidates employ a 'tough on crime' philosophy, including Chief Justice Shirley S. Abrahamson during her recent re-election campaign." Prof. Esenberg waxes syllogistic:

"If this motion is granted, then she — and virtually every other candidate who has ever run a contested race — should also be required to recuse themselves as well," Esenberg said.

Emphases added. But this doesn't at all follow either, given the substantial and substantive factual dissimilarities.

Gableman's campaign was devoted almost exclusively to this so-called "tough on crime philosophy" and isn't even remotely comparable to Abrahamson's. Rather, a prominent theme of the Chief Justice's recent campaign was an emphatic disabusing of the notion that judges "side" in advance with either plaintiffs or defendants.

Not only did Gableman continually and demonstrably promise to be an "ally" of law enforcement and its "war on crime," he went well out of his way to denigrate the professional experience of his opponent — so much so that Gableman has found himself up on ethics charges — and even further to disparage the very statutory and constitutional protections to which criminal defendants are entitled.

Abrahamson most certainly engaged in none of that business.

Moreover, the suggested test for Gableman's recusal under the circumstances is not simply whether or not he believes he can perform as an impartial magistrate, but whether a reasonable observer — in this case, the defendant/appellant, Allen — believes Gableman can, based on Gableman's own continuously repeated demonstrations.

This is a point that even the other conservative Republican quoted in Ziemer's story, Wisconsin Attorney General J.B. Van Hollen, appears to have overlooked:

Van Hollen said the motion [sic] "is an attack on our system of electing judges."

Van Hollen added that during an election, judicial candidates are allowed to express their views, within the limits of the law, and Gableman’s actions in 2008 were no different than past years.

"This in no way disqualifies them [justices] from being fair and impartial in a specific case," Van Hollen stated.

The latter is a daringly unequivocal claim. And it can only be true if one accepts that Gableman's actions were "no different than past years." But Gableman's actions were clearly quite different, in that they've succeeded in placing him in the unprecedented situation of being under investigation by the Wisconsin Judicial Commission.

No less an authority than former Wisconsin Supreme Court Justice Janine Geske had never seen anything like it, describing Gableman's shenanigans as "sinking to new lows," and one may safely accord considerably more deference to her observations than to Van Hollen's.

While it's true that a large amount of financial, media, and other support came from third parties (including, instructively, Rick Esenberg), not only did Gableman do nothing to set himself apart from those attacks against his opponent, but Gableman embraced them enthusiastically by featuring them prominently in his speechifying, his campaign literature, and at his campaign website.

(That website has long since been reduced to a lone index page bearing nothing but a logo, but much of it was previously retrieved and is attached as appendices to the motions for recusal.)

If anything was an attack on Wisconsin's system of electing judges, it was the disgraceful campaign of Gableman and his supporters.

Diane Sykes, the George W. Bush-appointed Seventh Circuit Court of Appeals judge, herself a former Wisconsin Supreme Court justice, called it "utterly inconsistent with the judicial role," and Gableman's notorious teevee ad a "particularly base and deceptive attack."

In any event, Caperton is more similar to Michael Gableman's situation than Esenberg lets on, since it deals with the appearance of bias created by massive campaign contributions to a judicial candidate by third party interests and according to the due process analysis, the appearance of bias is all that's required.

It was a core promise of Gableman's campaign he would not only be biased in favor of law enforcement but biased against criminal defendants. I don't know how even Esenberg could rebut that.

More specifically, one of the notable parallels between Gableman's case and Caperton is the involvement of the business outfit Wisconsin Manufacturers & Commerce, which spent millions of dollars on Gableman's behalf and ran literally thousands of radio and television spots in the weeks before the April, 2008 election disparaging Gableman's opponent for his work decades ago representing criminal defendants.

Rick Esenberg is often presented in the local press as a detached, academic observer, a special favorite of right-wing dissemblers like Charlie Sykes and Patrick McIlheran, and it was in that apparent capacity that he lent himself and Marquette University's prestige to WMC in a video presentation that laid the groundwork for WMC's and ultimately Gableman's notorious attacks on his political opponent.

But Prof. Esenberg's subsequent energetic defenses of the most fanatically and egregiously dishonest of Michael Gableman's supporters did much to detonate that facade of academic disinterest.

* The motions and related documents are available here.

** One of the reasons why Gableman's ethics investigation merits a public hearing — the one his lawyers are seeking to avoid — is so that the remaining 81% can learn more about what antics he got up to.

Van Hollen: To be or try to be

J-S headline: "State to join federal health lawsuit, Van Hollen says"

But see J-S body copy: "State Attorney General J.B. Van Hollen told the Associated Press that Wisconsin will try to join a federal lawsuit in Florida against the law along with three other states."

Attorney General Van Hollen has yet to explain what additional persuasiveness Wisconsin's participation can bring to the lawsuit, other than this: "I really do believe it makes a difference," he said.

Not so likely, at this point.

eta: In a later revision to the story, Van Hollen told the paper he'd assign two attorneys on a "very part-time" basis, sounding an awful lot like an admission he's got little or nothing substantive to add.

So, symbolism or shambolism, you make the call.

Spot the typo

Because I can't:

"As the only statewide Republican candidate in the entire nation to defeat an incumbent Democrat in 2006, we know what has to be done," Van Hollen wrote. "We know what it takes to win and we'll do it again, but I need your continued support to get there."

In reality, Van Hollen's predecessor, Peg Lautenschlager, lost in the Democratic primary to Dane County Executive Kathleen Falk. Van Hollen never got the chance to defeat the incumbent Democrat in '06.

"It may be time to find a hobby for those whose feathers were ruffled by the typo," snickered Darrin Schmitz,* Van Hollen's campaign spokesman.

Dan Bice.

I wonder what the typographical error is. "Statewide," "entire nation," and "incumbent Democrat" all appear to be spelled correctly.

I don't know how far through the alphabet you have to go, but in 2006 in Alabama, Republican Beth Killough Chapman defeated the incumbent Democrat, Nancy L. Worley, to become Secretary of State.

I'm pretty sure that's a statewide office too.

* An intriguing selection by Attorney General Van Hollen, the State of Wisconsin's top law enforcement officer.

Darrin Schmitz also engineered the political campaign of one Mike Gableman, who currently faces potential expulsion from the Wisconsin Supreme Court for violations of the Wisconsin Code of Judicial Conduct committed during that campaign.

Clearly, Gableman received some quality advice from Darrin Schmitz.

And Milwaukee County Executive Scott Walker, another Republican seeking statewide office, has enlisted the services of yet another supportive associate of Mike Gableman's, R.J. Johnson.

Both Messrs. Schmitz and Johnson appear to specialize in races to the bottom. Must be the Republican way.

Wisconsin: Ozanne v. Fitzgerald — A preview

Must. Destroy. Union. Dirty hippies blargh. — Shorter WISGOP

Action resumes this morning in the courtroom of Dane County Circuit Judge Maryann Sumi. The key elements of plaintiff Dane County District Attorney Ismail Ozanne's latest brief reduced to three tweets:

Dane County DA Ozanne concurs, Fitz pulled nothing but a Kinko's job, and he also wants the Kinko's job declared null and void. Ozanne further argues the LRB is bound by the TRO in addition to the SoS on account of the LRB's statutory proximity to the SoS.* And of course Ozanne argues the AG's attempt to moot the case is groundless and absurd (in so many words).

This new wrinkle to the case shouldn't be terribly difficult for Judge Sumi to dispose of. It's not even a close question. Think of it this way: If I can figure out in ten minutes what's since been affirmed by everybody from Ed Fallone to the Legislative Reference Bureau, it can't be rocket surgery. I cite Fallone** and the LRB as authorities because: Fallone's area of expertise is constitutional law, and the LRB has the nonpartisan, dispassionate, objective cred as few others do.

Rotating

The AG's argument is mostly bluster and about the furthest thing you'd expect from a self-advertised judicial conservative. It's bordering on the painful to follow its logic (such as it is) and is incoherent compared to the parsimonious Kinko's Amendment theory.

It's enough to send William of Ockham to rotating violently in his crypt, which is inadvisable because there are sharp objects in there.

It truly is astonishing that Fitz Van Walker would go to these lengths and is perhaps the best indicator yet that Walker and Fitzgerald are terrified to run this bill past another vote in the legislature.

Hockey sock

The bill likely wouldn't succeed this time around because they've since pissed off nearly everybody in the State, placed their own colleagues in serious danger of recall, and perhaps most importantly, imperiled their conservative majority on the Supreme Court. They're on the verge of nullifying the 2008 election of Michael Gableman — which alone justifies a vote for Kloppenburg — the one that cost Wisconsin Manufacturers & Commerce one king hell hockey sock full of dough.

And now warding off the FitzWalker taint from the incumbent conservative Justice David Prosser is going to cost WMC & Friends the other sock. But FitzWalker keeps pushing. It's pure madness.

Harrumph

As for the merits, two crucial points: 1) The Department of Justice admitted as much as three minutes less than two hours notice was given in advance of the Fitzgeralds' twilight ramble and 2) The DoJ conceded that the constitutional and statutory requirements of the Wisconsin Open Meetings Law override the legislature's immunity from judicial branch scrutiny of its internal procedural minutiae:

"Correct. . . . Absolutely correct."

Oh dearie, dearie me.

* This is an especially compelling argument because it puts to keen use a slightly modified version of AG Van Hollen's claim that the LRB's and the Secretary of State's "publications" are identical. If it is the case they are identical, then the LRB is likewise bound by Judge Sumi's restraining order. Slightly modified in the sense that although Van Hollen's claim is false, if Van Hollen wishes to assert its truth, then he must by the same reasoning concede that the TRO enjoins the LRB, which AG JBVH must deny. But JBVH can't have it both ways.

Nevertheless, Ozanne can demonstrate that the LRB was subject to the TRO without availing himself of any of Van Hollen's assertions.

** I also cite Fallone because Fallone said: "I do not see my analysis as differing in any significant way from the analysis previously set forth in this blog," meaning this blog, the one you're reading now.

No love for an old alumnus at the MULS webpage though! Harrumph.

Paper disappointed by candidates it endorsed

The Milwaukee Journal-Sentinel wishes the two candidates it recently endorsed for election — attorney general J.B. Van Hollen and governor-elect Scott Walker — would drop their "political charade" of opposition to the federal health care reform act. But the paper could have easily seen this coming, so its offended posture is a bit silly.

The paper is half right about one thing: The longer Wisconsin waits to join — or file a friendly brief alongside — one of the existing lawsuits, the more Van Hollen's involvement appears purely political.

But this much was apparent more than a month ago.

Truth be told, the incumbent governor James Doyle assumed much of the blame for politicizing the State's official response to the health care act. Recall that back in March, when Van Hollen expressed his desire to protect Wisconsin's position in the constitutional scheme, Doyle denounced the AG's plan as a "frivolous and political attempt to thwart the actions of Congress and the law of the country."

That's ridiculous. I submit it was Van Hollen's duty, whatever the ultimate meritoriousness of Congress's defensive arguments.

There's a legitimate question here, whether Congress has the power to coerce into existence, on threat of penalty, the commerce it is empowered to regulate. It's something that Congress has never attempted before and, despite the U.S. Supreme Court's approving on several occasions mighty dubious reaches of the interstate commerce power, there is no clear guidance as to this situation.

Except, of course, the text of the Constitution, which seems to me — and plenty of others far more knowledgeable — not to contemplate something like the insurance mandate that drives health care reform.

(But we don't read the Constitution much anymore; we tend to dwell instead on the interpretations of federal courts. That's a problem.)

Meanwhile the Journal-Sentinel accuses the mandate's legal challengers of "rely[ing] on faulty reasoning," and then the paper immediately frames the central inquiry as follows: "Is the purchase of health insurance an economic activity?" Obviously the answer to that question is 'Yes,' except unfortunately that isn't the question.

The problem is, there is no commerce — interstate or otherwise — to regulate at all until Congress forces it into existence on threat of penalty through the individual insurance mandate. That the federal government is one of limited, enumerated powers is not a Tea Party cliché, it's an historical fact plain to any cursory student of politics.*

And that the J-S compares a federal mandate to a State mandate, where States possess plenary as opposed to enumerated powers, belies either the paper's desperation or its ignorance. There simply is no such comparison and in short, it's incumbent on any of the State AGs to ensure those plenary powers are not about to be usurped by a seriously questionable exercise of otherwise limited federal power.

Talk about your faulty reasoning.

"It is absolutely essential to have a mandate," declares the J-S, in spite of the constitutional roadblocks its editorial utterly fails to engage. It may be good policy, and it may save hundreds of millions of dollars eventually, but you don't have to be an Idaho militiaman to be wary of judicial precedent that authorizes the federal government to force citizens into commercial transactions against their will.

* It's why Madison thought an attached bill of rights redundant.

h/t folkbum.

Liberals in denial, continued

Van Hollen also was wrong to seek to join other attorneys general in a lawsuit over the individual mandate in the new federal health care law. Van Hollen claims the legislation "was a clear case of federal overreach" for requiring citizens to buy health insurance. We'd say it's Van Hollen who is overreaching.

— Milwaukee Journal-Sentinel editorial.

The truth is, Van Hollen's been spot on the money so far. And the AG can expect more vindication forthcoming from Virginia by year's end.

HCR is in trouble, and not from Ron Johnson's silly cries of "repeal." Congress may regulate commerce, but it seems doubtful Congress may coerce into existence the commerce it's empowered to regulate.

And if the federales' taxing power argument keeps failing as hard as it did in Florida, then that coercion into existence is all it's got left.

It may be necessary, but is it proper? It's got to be both.

Federal court denies J.B. Van Hollen's "futility"

On January 19 Judge Roger Vinson of the U.S. District Court for the Northern District of Florida granted Wisconsin et al's motion to join a lawsuit challenging the constitutionality of so-called Obamacare.

The defendants, the federal Department of Health and Human Services and others, opposed Wisconsin's motion on the grounds of any one of the following: futility, undue delay, bad faith, dilatory motive, or prejudice to the defendants. Wrote Vinson in ringing endorsement: "The proposed amendment would not be futile."

Indeed, the only amendment to the existing civil complaint is the addition of Wisconsin Attorney General J.B. Van Hollen's name to the case caption — the title block at the top of the document listing the names of the parties — along with five other State AGs or governors.

So legally insignificant is Van Hollen's amendment that Vinson "relieve[d] the defendants of the obligation" of even bothering to reply (normally, amended complaints require a written answer).

That is, it's at best the merest of mere formalities and at worst a political stunt, but one which apparently doesn't count as "bad faith."

* Amusingly for fans of judicial politics, the law of civil procedure directs that judges' assent to the admission of amended complaints is to be "freely and liberally given," according to Vinson's paraphrase.

Van Hollen now rests to pray that the said free and liberal giving, politically useful to him in this instance, ends at some point during the giving of Congress's power to regulate interstate commerce.

Wisconsin AG debate shaping up to be a doozy

One thing that might be said for Democrat Scott Hassett, who is challenging the incumbent Republican Wisconsin attorney general J.B. Van Hollen in the November election, is that he is not timid:

Van Hollen Launches Statewide "Blame Victims First" Tour (.pdf)

Hassett's campaign also called controversial Calumet County District Attorney Kenneth Kratz an "admitted sexual predator" — which I'm not certain is an entirely supportable characterization at this point — and that Van Hollen let the said admitted sexual predator "walk free."

Then there are the guns and the gays and the Commerce Clause.

Scott Hassett and J.B. Van Hollen meet for un petit dejeuner du midi on Thursday, October 7 at the new Marquette University law school, an encounter moderated by the eminently capable Mike Gousha.

"Cowboys" take sudden heed of civil rights

Right-wing shouters and bloggers — including even Tennessee's Glenn "Instaputz" Reynolds — are predictably and self-righteously horrified at Milwaukee Chief of Police Edward Flynn's reaction to Wisconsin Attorney General J.B. Van Hollen's obfuscatory gun memo.

The memo, tactfully released on the 10th anniversary of a deadly mass shooting in Columbine, CO, elicited a response from Flynn that suggested urban police officers might, when confronted with a firearm-toting citizen, "put them on the ground, take the gun away and then decide whether you have a right to carry it."

In fact, reaction from law enforcement to the memo has been pretty much uniform, at least among those interviewed in the press.

Local conservatives, who've spent the last two State Supreme Court elections energetically mocking the alleged tendencies of certain judges to defer to constitutional protections at the detriment of law enforcement, are suddenly assuming the contrary position.

Because it's all different when they're your rights, isn't it?

None of them, naturally, has entertained the strong likelihood that Flynn's remarks were inspired by Van Hollen's own ill-advised hypotheticals involving hunters bearing loaded shotguns "quietly tracking game" along Wisconsin Ave. or State St. during rush hour.

Whether the described activities fit the legal definition of "disorderly conduct" isn't exactly the point in such a situation: public safety is.

As a practical matter, anybody foolish enough to act out one of Van Hollen's scenarios is effectively begging for a police gang tackle.

Nor have the right-wingers engaged Chief Flynn's apparent reasoning, that the memo may send a message to convicted felons, who are prohibited from owning firearms, that so long as they open carry, they might amble casually around Cathedral Square with impunity.

Let's face it, Van Hollen's memo is a bungle, even couched as it is in a series of footnoted legal disclaimers abdicating its authority.

He was asked to discuss a theory of law, and made the mistake of tossing forth a couple of particularly inapt factual scenarios, and it's little wonder that Flynn and the others have responded as they did.

Now conservatives want to waggle their trigger fingers at Flynn for saying little more than nearly everybody else to whom the AG's memo was directed will say: It tells us nothing we didn't know already, clarifies nothing, and in fact only muddies the waters still further.

That is, the opposite of what it was supposed to do.

Madison Capital Times stirs the sexting DA pot

Furiously:

Did Van Hollen cover for sexting DA?

[Wisconsin] Attorney General J.B. Van Hollen should welcome and cooperate fully with an independent investigation of charges that he attempted to protect a political ally who stands accused of gross misconduct.

To do otherwise would invite suspicion that Van Hollen engaged in activities that would merit his removal as attorney general and sanctions that would almost certainly include the suspension of his license to practice law in Wisconsin. That suspicion would destroy the credibility of the attorney general.

There is no question that Van Hollen has the right to be presumed innocent* until an investigation is completed.

Holy moley. And it goes on like that. I guess they are not big fans.

Yet today's Capital Times editorial admonishes voters to ignore negative campaign ads — "flying mud" — in the governor's race!

Seems they're pretty good at flinging it themselves.

This should be an interesting encounter on Oct. 7.

* That's generous of them, at least.

Van Hollen voids all pre-1901 law in Wisconsin

And quite possibly even the State constitution itself

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

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

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

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

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

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

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

Isn't remote jurisdiction still jurisdiction?

According to the Milwaukee Journal-Sentinel:

[Wisconsin Supreme Court Justice-elect Mike] Gableman has acknowledged he used his government phone to call the fund-raising staff of Republican Gov. Scott McCallum and others but has insisted the calls were not for political work.

I just called, to say, 'I love you.'

Records show dozens of calls were made to McCallum's fund-raisers, his campaign headquarters, the state Republican Party headquarters and McCallum donors in the weeks before Gableman hosted a June 12, 2002, fund-raiser for McCallum.

McCallum appointed Gableman to be Burnett County circuit judge two months later.

"Even though Gableman had not applied for the job or been reviewed by an advisory council McCallum set up to review judicial candidates."

But nobody in the entire State of Wisconsin has had the authority to investigate any further, or so they all say. Best of all, Republican Attorney General J.B. Van Hollen had to step aside from any potential inquiry because Mrs. Van Hollen once worked for Gableman.

"We're not going to grasp for jurisdiction that is at best remote," [Deputy AG Ray Taffora] said.

Nope, never heard of a lawyer making a case for jurisdiction, no matter how "remote" (whatever that's supposed to mean).

Nice. Enjoy your banana, peons.

Additionally, it's disingenuous of the Journal-Sentinel to be referring to One Wisconsin Now, which initiated the investigative request, as an "anti-Gableman group." First of all, OWN advocates for a wide array of other issues and concerns apart from Mike Gableman.

Second, "anti-Gableman" fails to capture the most significant reason why many of us opposed Gableman's candidacy: the unseemly — if not downright reprehensible — nature of his political tactics.

Had Gableman not so deliberately and flagrantly abused the electoral privilege but rather engaged in a level of debate that respected the office to which he aspired, I'm certain he would have at least earned the professional respect of his political adversaries despite any disagreements over so-called judicial philosophy.

He may even have still won the election.

But that was too much to ask for. And if that was what we get in opposition to a moderate like Justice Louis Butler, who knows what Chief Justice Shirley Abrahamson — who is marginally closer in terms of judicial disposition to the phony caricature Gableman and his supporters painted of Justice Butler — will face next spring.

Hold your noses, Wisconsin.

More: Van Hollen helps run out the clock.