Wisconsin statutes, a couple three of them

Or Fitzwalkerstan: Here, let me show you it

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

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

So, 991.11:

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

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

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

35.095(3)(a):

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

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

35.095(3)(b):

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

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secretary of state did (for he "shall") at one point designate a date of publication for the Act, but on March 18, he rescinded it in compliance with the Dane County circuit court's temporary restraining order, which prevents the secretary of state from publishing the Act.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Scott Fitzgerald orders 2011 WI Act 10 printed

Senator's bold move constructively no different than visiting Kinko's

Word is Republican State Senate leader Scott Fitzgerald ordered the Legislative Reference Bureau to "publish" (scare quotes because "publication" did not occur) 2011 Wisconsin Act 10 (.pdf; 46 pgs.).

Obviously Republican State Senate leader Scott Fitzgerald is sufficiently aware there is currently a Dane County circuit court order in force preventing the Secretary of State from publishing the Act.

"Publish" and "publication" are legal terms of art referring here to a step in the legislative process immediately preceding enforceability.

There is a footnote purportedly justifying Republican desperado numero dos Scott Fitzgerald's "order" on the cover page of the Act citing Wis. Stat. §35.095(3)(a), which itself states:

[T]he [LRB] shall publish every act and every portion of an act which is enacted by the legislature over the governor's partial veto within 10 working days after its date of enactment.

But I suspect "publish" doesn't mean publish in the sense that the Secretary of State is enjoined from doing, but rather publishing as in printing onto paper, as §35.095 resides in a subchapter of the statutes entitled, "LEGISLATIVE; CLASS 1 PRINTING." Therefore it's reasonable to wonder whether Fitzgerald is trying to pull a fast one (it's also reasonable to wonder that just because it's Fitzgerald).

Consequently, it's likewise reasonable to inquire into Scott Fitzgerald's intent, not just because he's Scott Fitzgerald this time but because of what the Supreme Court had to say in 2009:

[I]f some action is argued to be sufficient to constitute publication, that action must be evaluated in light of the purpose publication seeks to achieve, i.e., was the public provided with sufficient notice of the law that is being enacted or amended.

— MKE Journal Sentinel v. Wisconsin Dept. of Admin.*

It's debatable if sufficient notice is even possible, given publication was enjoined by a court order in effect to this very moment.

And of course there are many uncounted other purposes, one of which is conceivably Scott Fitzgerald's capriciousness,** in trying to pass off "printing" as "publication." I wouldn't put it past him.

I don't believe this particular action constitutes publication at all.

The utter farce continues ... Welcome to Fitzwalkerstan.

* Of which Fitz should have knowledge, because there's a strong possibility it's going to facilitate his downfall in the Supreme Court.

** I leave it to others to characterize Fitzgerald's performance in less charitable terms, most of which are assuredly every bit as applicable.

eta 01 — Act 10 is unenforceable in its present posture:

[F]urther action by the Secretary of State is required in order for Act 10 to take effect.

Legislative Reference Bureau memo to Rep. Peter Barca (.pdf)

Seems to me it would have been easier just to call what the Legislative Reference Bureau did "printing" instead of "publishing" (subchapter headings aren't law, but they're a good guide). On the other hand, the LRB doesn't want to change the words of the statutes because they're straight arrows, and rightly so. Changing the words of the statutes is what the courts (and insolent bloggers) get to do.

eta 02 — A bit more here and here. And also here, which comes complete with a local wing-nut round-up and the inspired jape,

What Republicans do best: Turning an end around run into running into their own rounded rear ends.

Priceless, and funny 'cause it's true.

Much more here also.

Wisconsin Supreme Court footnote

What Dane County Circuit Judge Maryann Sumi enjoined in the spring of 2011 was the publication of Act 10, and not Act 10 itself nor any of its provisions (the "substance" of the law). Act 10 had already been enacted. The legislative process was completed. There was nothing left for the legislature to do. What remained for Act 10 was purely administrative. Bear that in mind during the inevitable storm of right-wing bullshit* should Judge Sumi decide to run against Roggensack.

* The Bradley Foundation's publishing house has started already.

Wisconsin Republicans find another law to break

"Whether or not it's legal, it's certainly cheating."

Classic bit of chicanery from the Most Honorable Party in Power.

So now Wisconsin Republicans, who initially wanted their ludicrously partisan electoral redistricting plan first implemented with the general election on November 6, 2012,* not only want to revise the date of implementation to immediately, they just want to revise that date for the Senate, and not the Assembly. But according to the Wisconsin statutes, "This state is divided into 33 senate districts, each composed of 3 assembly districts." In other words, you can't have a Senate district without the three Assembly districts. These people are out of control.

Quashing their lust after power is exactly what recall elections are for.

This is the committee that is meeting at 1 p.m. on Hallowe'en to discuss these issues. I think Sen. Erpenbach has a real opportunity to shine here.

And then a good shot at beating Walker.

* The Legislature enacted legislation reapportioning the legislative districts and members, 2011 Wisconsin Act 43, as required by the state constitution. Wis. Const. art. IV, § 3. The legislation was signed by the Governor and published on August 23, 2011. Unless specified in the legislation, every act is effective on the day following publication. WIS. STAT. § 991.11. However, 2011 Wisconsin Act 43 specifically provided for the initial applicability of the act for certain purposes. The Act "first applies, with respect to regular elections, to offices filled at the 2012 general election." 2011 Wis. Act 43, § 10 (1). In addition, the Act "first applies, with respect to special or recall elections, to offices filled or contested concurrently with the 2012 general election." 2011 Wis. Act § 10 (2). — GAB Subject: legislative redistricting, Effective date of.

Huebsch v. Dane County: It could have been worse

A revelation:

There was some internal disagreement among the four people who wanted to [vacate Judge Sumi's decision]. Some of the people thought that the order should say that the bill that was the subject of this order had been published. My view was, 'No, it has not been published.' And in that, the three dissenters agreed with me. — Wisconsin Supreme Court Justice David Prosser

Which is interesting because it was my understanding that the near-unanimity of informed commentary — including, we now learn, Justice Prosser's — agreed that 2011 Wisconsin Act 10 had not been published, in the sense required by both the State constitution and the State statutes. There is no discussion of this question of publication in either the court's unsigned order or Justice Prosser's concurring opinion.

There is this, from Chief Justice Shirley Abrahamson's dissent:

¶111 The order and concurrence fail to examine carefully the arguments of the Secretary of State about the respective roles of the Secretary of State and the Legislative Reference Bureau in the publication of legislative acts, the printing of notice in the official state newspaper, and the effective date of a statute. See Wis. Stat. §§ 14.38(10), 35.095(3)(b), 991.11.

Indeed, between the two cases that the Huebsch majority claimed were supposed to have controlled Judge Sumi's deliberations — as opposed to their being controlled by, you know, the plain text of the Open Meetings Law — one, Goodland v. Zimmerman, was about an unpublished bill, and the other, La Follette v. Stitt, was about a published bill. Nevertheless, wrote Justice Prosser, "In my view, this case is governed by Stitt."* On the other hand, the court's unsigned order relied primarily on Goodland.

That's exactly the opposite of what an observer might expect, in terms of judicial precedent relied upon being "on point," as they say in the biz.

All of which, it seems to me, serves to support the dissenters' position that the case merited either further argument or at least further explication by the four conservative justices who made up the court's majority. I would like to have seen the reasoning of "some of the people" who thought 2011 Wisconsin Act 10 was published and not just printed. Because that would have taken some serious contortions beyond what the court did perform, which was to manufacture a unique form of judicial branch authority not bestowed by the State constitution.

And, while Justice Prosser claims that Assembly Leader Jeff Fitzgerald's public exhortation to the court to produce a decision in keeping with the Republican-controlled legislature's deadline was "separate" from the court's internal timetable, he sure got pretty excited when he learned that the WISGOP's requirements were in danger of not being satisfied.

One thing's for certain, this is an extremely politicized court.

* Then-Republican legislator David Prosser filed an amicus brief in Stitt.

Shorter Huebsch v. Sumi

If you don't have time to watch yesterday's entire marathon Wisconsin Supreme Court oral arguments, just watch these three lawyers.

Wisconsin Eye Part 2 of 3:

01:07:44 — Robert Jambois, counsel for Rep. Peter Barca
01:33:12 — Lester Pines, counsel for Sen. Mark Miller
02:05:18 — Roger Sage, counsel for Sec. of State Doug La Follette

Mr. Sage's presentation might be said to be optional, as he is addressing the question of whether 2011 Wisconsin Act 10 was published in the constitutional sense, and you already know all about that. In fact many of the issues raised by Messrs. Jambois and Pines would already be familiar to regular readers of this here blog. And while the Milwaukee Journal-Sentinel is reporting that the justices "expressed skepticism" toward the reasoning contained in Judge Sumi's temporary and final rulings, which is true to some extent, you won't hear much skepticism from the bench during either the Jambois or the Pines presentations.

And while the Journal-Sentinel reports* that "the most aggressive questioning came from Justice Michael Gableman," it came during the presentation of Dane County DA Ismail Ozanne (00:01:18) who, with all due respect, is probably less used to addressing the structural constitutional questions at issue in these two consolidated cases.

Last night apparently there were some rumors circulating that the court was preparing to vacate Judge Sumi's ruling, which would have the effect of codifying 2011 Wisconsin Act 10.** If that were to come to pass, I suspect the law might again be enjoined immediately, on the same factual grounds its publication was enjoined in the first place. And the said codification would have the effect of rendering Gableman's objections moot almost in their totality, insofar as those objections were grounded in the beloved 1943 case Goodland v. Zimmerman, which teaches that a court may not interfere with the legislative process until a bill becomes law (that is, in Wisconsin, once its publication is made).

Gableman's apparent objections appear to presume that the trial court, where Judge Sumi presides, is a rule-making authority rather than a circuit court making a narrow decision based only on the facts presented in evidence to that particular court.*** In other words, the concerns expressed by Gableman and appearing in the lead paragraphs of the Journal-Sentinel report are representative of a slippery slope fallacy.

Generally courts do not make rulings grounded in logical fallacies.

But you never know, with this one.

In any event, the guy you have to watch is Justice Patrick Crooks, who raised concerns similar to those of my friend Bill Tyroler, who suggests that the authority conferred on the district attorney by the Open Meetings Law to challenge the constitutionality of the legislative process is itself an unconstitutional delegation of power by the legislature to the executive branch, under which auspices the district attorney operates.

As this space has been observing practically since the outset of this controversy, it seems to me the only way the court can vacate Judge Sumi's very conservative, very restrained reasoning is to find the provisions of the Open Meetings Law upon which Judge Sumi relied to be themselves violative of judge-made — or at least judge-inferred — constitutional law doctrine. Why the Wisconsin Department of Justice is pursuing the objective of restricting public access to the operation of State government is either a mystery or completely typical and expected of the Republican Scott Walker administration and its disciples and allies.

* And once again, it is simply not correct to say that Judge Sumi was "allowed" to file a legal brief further to building maintenance supervisor Mike Huebsch's petition to the Supreme Court for a supervisory writ directed at Judge Sumi. Judge Sumi was ordered by the Supreme Court to file the brief. And now she is being criticized for not disobeying that order. This is how absurd the Wisconsin Department of Justice, under the direction of Deputy Attorney General Kevin St. John, has become.

** a.k.a. "legislating from the bench."

*** Among the more amusing moments during yesterday's proceedings was when Chief Justice Shirley Abrahamson directed Deputy AG St. John to cease and desist from referring to the circuit court as an "inferior court." The circuit court's function is different; it is not "inferior." And indeed the expression "inferior court" is plucked from federal law — which has no bearing on the cases at bar — where it appears in the federal Constitution. In fact, as this space has pointed out previously, despite the U.S. Constitution's reference to "inferior courts" which may be created from time to time by the Congress, the Article III judicial power inheres equally among the United States Supreme Court, the United States Courts of Appeal, and the United States District Courts (the parallel entities to the State circuit courts). Shirley is the best.

St. John, like many a right-wing ideologue, is a devotee of ad hominem.

Closing statement on Fitz Van Walker arrogance

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

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

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

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

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

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

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

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

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

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

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

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

Obviously your humble correspondent concurs.

eta — From the Milwaukee Journal-Sentinel:

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

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

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

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

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

Fitzgerald in turn acted on the basis of that advice.

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

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

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

*** Who had done nothing whatsoever unlawful.

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

Fitzgeralds try foisting civics lesson on Wisconsin

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

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

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

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

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

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

What up bruh

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

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

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

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

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

Hench-pariahs

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

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

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

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

* Thrice if you consider the recent decount attempt.

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

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

Scott Fitzgerald had better hope he's wrong

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

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

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

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

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

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

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

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

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

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

Continued — Wisconsin statutes, a couple three of them

Now we know for sure 2011 WI Act 10 is not law

Because this guy thinks it is:

Was going to say something more about the legal messism in Wisconsin with the Secretary of State (likely wrong) saying the law is not law yet, and the law saying otherwise.

Nah you've said enough.

Earlier Jacobson: Well played.

Jim Troupis, professional Republican concern troll

Here we go:

Troupis was disappointed Judge Sumi is considering a run. "It's obvious she was talked into it because of Act 10," Troupis said. "It should be about competence and qualifications, and clearly the only purpose of her running is to open that pro-union stuff."

What a dyck. And I'm sure Sneerin' Rick Esenberg won't be far behind.

Meanwhile have some facts, not foolish, condescending speculation:

Judge Roggensack affirmed Judge Sumi 12 out of 13 times

J.B. Van Hollen's record of extreme partisanship

And dereliction of duty:

The AG ignored the constitution, the statutes and a judge's order and simply issued a press release declaring: "Act 10 is now law."

That he did, and nobody agreed — except for unnamed highly partisan State Supreme Court justices — because J.B. Van Hollen's untethered pronunciamento would have nullified decades worth of Wisconsin law.

Tea Party Video: J.B. Van Hollen in "Fight, kill, fight."

What, no bonus for Mike "Peppercorn" Gableman?

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

You have got to be effing kidding me:

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

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

Some defense.

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

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

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

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

Daniel is Suhr tenacious, I'll give him that much

[Good grief man.]

Mr. Suhr, thank you for taking the time. I must say I have always found kibbutzing with you on the internets a source of considerable amusement and I am sincerely grateful for that as well.

However, please have a look one more time at § 809.71, which refers back to and incorporates by that reference § 809.51. A person seeking a supervisory writ under § 809.71 (e.g., petitioner Mike Huebsch [a.k.a. Scott Walker] who, incidentally, ended up getting something he never sought by dint of the punctuational jurisdiction invented by Justice/Gableman) must file "in accordance with s. 809.51." Thus does "the court" in § 809.51 mean the Supreme Court, in perfect consonance with the wise and premonitory guidance set forth in § 809.01(4).

So to continue to insist, as you are doing above, that "the court" in § 809.51 can mean "only" the Court of Appeals is, as the saying goes, absurd. Again: I am not misapplying § 809.51 but rather reading it in its alternate context, following the direction of § 809.71.

The only thing in § 809.51 that § 809.71 does not incorporate by reference is, obviously, the former's language, "or its original jurisdiction," which is where your superfluity analysis would apply, as the Supreme Court's original jurisdiction is addressed separately, in § 809.70.

And these have been my contentions from the outset: that original and supervisory jurisdiction are separate and distinct forms of judicial authority, and that there is no constitutional basis for Justice/Gableman's creation of an alternatively convenient source of judicial power by forward slash.

(Setting amusement aside for a moment, your main post here at the Marquette University Law School faculty blog embodies an unwarranted criticism of my writing and I can only hope that your readers continue on throughout this comments thread for the fuller explication. However, experience teaches me that that is not something upon which I can depend, if you're picking up what I'm throwing down.)

By the way, a not dissimilar question of construction arose at the time the Walker administration attempted vainly to claim publication of 2011 Wisconsin Act 10 while publication was temporarily enjoined. A provision might have two different meanings, or two different applications, depending upon how it may be incorporated by reference into other statutory provisions.

You can read all about that little brouhaha at my own wildly popular blog, illusory tenant, in a post entitled, "Wisconsin statutes, a couple three of them," of March 26, 2011. Or, if you prefer, Prof. Fallone's compelling epistle of March 28, at this present location, [*] which covers much of the same ground (as Prof. Fallone was most generous to acknowledge).

Have a good one, Mr. Suhr, and keep those FedSoc recruits coming.

* That is, the Marquette University Law School faculty blog, to whence the above comment was submitted. Should be posted in a day or two.

Kathleen Falk v. Fitzwalkerstan

Calendar reminder:
Oral argument scheduled for Wednesday, April 13, at 1:15 p.m.

The action challenges fiscally related elements in the allegedly non-fiscal 2011 Wisconsin Act 10. Falk is the Dane County Executive.

Court official: Judge Maryann Sumi.

Wisconsin Act 10 again

Excellent commentary on Friday's decision here.

Compare Gov. Scott Walker's "statement in reaction." Pathetic.

Prosser pal wrangles free from Prosser chokehold

Concludes Wisconsin Supreme Court Justice Patience Roggensack:

I conclude that the Rule of Necessity cannot trump the mandatory directive of the legislature.

So whatever happened to the mandatory directive of the legislature to the chief judge of the court of appeals to appoint a three-judge panel?

Same thing as happened to the mandatory directive of the legislature that under no circumstances is less than two hours notice to be given of a public meeting of the legislature, I suppose: it was duly ignored.

Continues Justice Roggensack:

Statutory interpretation begins with the words chosen by the legislature in order to determine the meaning of the statute.

Yes, and let's look at some words chosen by the legislature:

A judicial conduct ... panel shall consist of either 3 court of appeals judges or 2 court of appeals judges and one reserve judge. Each judge may be selected from any court of appeals district including the potential selection of all judges from the same district. The chief judge of the court of appeals shall select the judges and designate which shall be presiding judge.

Why hasn't the chief judge done so? We are told — continually by the Milwaukee Journal-Sentinel — that the chief judge is waiting for the Supreme Court's "order" to him to do so. That alleged requirement is pure fantasy. If Justice Roggensack is recusing herself from Justice Prosser's ethics case as the first step to prevent the Supreme Court quorum allegedly required to order the chief judge to appoint a judicial conduct panel, what we're witnessing is the biggest legal travesty since Roggensack and her "conservative" colleagues last June invented a power not authorized by the State constitution in order to protect their fellow Republicans from the consequences of the Republican-controlled legislature's facially illegal activities in passing their union-busting Act 10.

And the State's biggest newspaper is helping enable this farce.

Calling Waukesha County: What say you?

This:

"I am disappointed in Judge Sumi's ruling that declared 2011 Act 10 void," said Waukesha County Executive Dan Vrakas.

What, and he's not disappointed Republicans in both the Assembly and the Senate both violated the Wisconsin constitution and broke the law? There's another guy who, as Supreme Court Justice David Prosser would and did put it, "has got a little too much Waukesha County in him."

But easily the best part of the attached document is this notification: "Contact: Ellen Nowak, County Executive’s Office, (262) 548-7902."

You remember Ellen Nowak, she's the former Assembly counsel who grotesquely misrepresented the law in service of defaming Judge Sumi.

Have they no shame? Evidently they'd like you to ring up and ask.

Why the gun-totin' DA's petition was denied?

That I don't know.

Perhaps because the gun law has three exceptions to the prohibitions on carrying, and the law says "any" of them apply. In one exception, the law says a judge has the power to grant — or not grant — permission to conceal-carry licensees and in another exception the law says a DA can conceal-carry in court.

Because "any" of the exceptions apply, the judges chose the one that inconveniences the DA, and the judge has quite a bit more stroke in the courtroom than has the DA. For example a judge can tell a DA in her courtroom to sit down, be quiet, stop being such a dick, etc.

The Supreme Court wrote just a few months ago that a petition for a supervisory writ won't be accepted unless the lower court's duty is "plain" and the alleged violation by the subordinate court judge is "clear."

I don't think either of those elements are present here.

Furthermore if the court did accept this petition, it would potentially be in the position of having to contradict itself on the questions of supervisory and original jurisdiction — these are two separate grants of power to the court in the Wisconsin constitution and the Wisconsin statutes — for the third time in roughly one year.

What I find amusing is that the court combined these two separate grants of authority in its Act 10 decision in June, 2011, and a few months later laid down the law with respect to the high burden — the "clear" and the "plain" bits — of establishing its supervisory jurisdiction, which the "conservative" majority itself clearly had not done in the petition against Dane County Circuit Court Judge Maryann Sumi.

The attorney(s) who drafted this petition recognize the distinction between supervisory and original jurisdiction, hence the "or in the alternative" language and the separate references to 809.70 and 809.71 (the distinction between which was also discussed at this blog pursuant to some nonsense that was published at the Marquette Law School Faculty blog by a young Federalist Society pinhead).

More on all of that behind the links in the post [below].

Judge Sumi rules, in two senses of the word

Decides she's heard enough

Dane County Circuit Court Judge Maryann Sumi (.pdf; 2 pgs):

[B]ased on the briefs of counsel, the uncontroverted testimony, and the evidence received at the March 29, 2011 evidentiary hearing, it is hereby DECLARED that 2011 Wisconsin Act 10 has not been published within the meaning of Wis. Stats. §§ 991.11, 35.095(1)(b) and 35.095(3)(b), and is therefore not in effect.

Exactly right.

I'm telling you, this can only get worse for Fitz Van Walker — Political. Disaster. Entirely self-inflicted. Any sanctions pale by comparison.

I also guarantee you that both conservative judicial heroes Antonin Scalia and Clarence Thomas would affirm Judge Sumi in a heartbeat.

And next, conservative Republicans may lose control of the Supreme Court that cost them several millions of dollars only three years ago.

Fitz Van Walker, LLC could very well be persona non grata even at the next Wisconsin Manufacturers & Commerce kaffeeklatsch.