What is the sound of one irony meter exploding

Gableman wants Crooks off of ethics case

Here's why:

Notably, Justice Patrick Crooks wrote separately to indicate that he was fully prepared to deny Allen's motion [to get Gableman off of his case], thus providing a fourth and decisive vote in that direction, had it not been for Atty. James Bopp's shenanigans as Gableman's defense lawyer during and after Gableman's hearing on ethics charges in September.

Unintended consequences.

Apparently Gableman is concerned about getting a fair hearing before an impartial tribunal, and is troubled by "gratuitous personal attacks" and "personal criticisms" which might have a tendency to generate the appearance of judicial bias against the respondent, Gableman.

Who would have ever heard of such things.

Here's my question: If Justice Crooks recuses himself from future participation in Gableman's ethics case, will Crooks thereby be denying Gableman's First Amendment right to vote in a general election for the State Supreme Court justice of his choosing?

What about the 499,636 Wisconsinites who voted for Justice Crooks?

Reporters need to read legal opinions

Or else ask somebody who has. According to the Badger Herald:

Crooks said that Bopp's comments "startled and appalled many in the legal community," and he called on Gableman to distance himself from the lawyer's views.

No, Justice Crooks did not "call on Gableman to distance himself from the lawyer's views." Justice Crooks simply observed that a recent statement of Gableman's pledging to treat "all persons fairly" did not include a repudiation of Bopp's comments. That's just a plain fact.

Justice Crooks's overarching point was that Gableman's lawyer Bopp's remarks turned up in supplemental filings to Aaron Antonio Allen's initial request to have Gableman recused from hearing his criminal appeal and the court was giving short shrift to those additional factors by refusing to order additional briefing on the matter.

A reporter should know the difference between reporting and advocacy, a particularly crucial distinction in this instance, where no such advocacy exists. Gableman also claims that Justice Crooks's observation is a "rebuke" and a "gratuitous personal attack," but neither of these hyperbolic accusations is supported by the record.

Gableman set his own table. He sure ain't no victim.

Court catching political hell, says former justice

Local blogger lobbies for paralegals to decide appellate cases

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

Understatement, really.

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

Well, I think we know who they might be:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

eta:

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

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

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

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

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

Gableman bounced back to Judicial Commission

Upping the ante, three of six justices want a defamation trial

Sadly, the approach offered in defense of the advertisement at issue here would approach the Code of Judicial Conduct in the manner of wordplay and linguistic gamesmanship, rather than as an embodiment of substantive ethical standards.

— Opinion of Abrahamson, Bradley, and Crooks

To the surprise of probably no one, the Wisconsin Supreme Court has reached an "impasse" in the matter of Michael Gableman (depicted at left). Three justices, Prosser, Roggensack, and Ziegler, said last night they "anticipate" that the Wisconsin Judicial Commission will formally abandon its ethics complaint against Gableman (significant to the court's opinions, a complaint that Gableman himself has not been successful in having dismissed).

[eta: Gableman is reportedly dancing a victory gavotte-by-proxy.]

The other three justices, Chief Justice Abrahamson, Bradley, and Crooks, gave "directions" to the Commission to request a trial by jury to determine whether Gableman's scurrilous 2008 teevee ad deliberately and maliciously misrepresented facts about then-sitting Wisconsin Supreme Court Justice Louis B. Butler.

It's not immediately clear whether half of an equally divided court (Gableman, titularly the seventh member, is not participating) has any authority to compel those directions in this case. Nor is it clear, even if half the court does possess that authority, whether the Judicial Commission long since relinquished its opportunity to exercise its own authority to request a jury's factual review.

According to the court's general provisions in the Wisconsin statutes, the Commission may request a jury hearing in a matter, but it has to do so before it files a formal complaint, which it already did in October, 2008.

The latter requirement, it seems to me, presumes a resolution once the Commission advances its case, something that has yet to be achieved even after its reaching through the State Supreme Court. But the court yesterday was unanimous in its view that the next move, whatever it might be, belongs to the Judicial Commission.

[eta: Learned counsel Rob Henak suggests it move into Club Fed.]

The Commission in 2008 chose instead to present its case not to a jury but before a three-judge panel. That presentation happened last September in Waukesha County. Two months later the panel handed up its recommendation, which the Supreme Court is not obliged to follow. The panel recommended that the complaint against Gableman be dismissed, but two judges also found that Gableman had violated a different provision of the code of judicial ethics.

The third panelist, Ralph Adam Fine, disagreed substantially and found Gableman had by his deeds committed the more serious, punishable violation alleged by the Commission, but that the ethics rule itself was an unconstitutional abridgment of speech and thus not enforceable against Gableman.

As I said at the time, Judge Fine's separate opinion was the most significant. That turns out to have been an accurate prediction.

Judge Fine was the only one of the panelists who rightly found ludicrous Gableman's defense that the statement clearly professed in his ad, that Butler's professional obligations as defense counsel contributed to causing the rape of an 11-year-old mentally disabled girl, could be overlooked in favor of isolating an audiovisual ad's script, breaking that script into individual, brief English sentences and, moreover, ignoring the meaningful connections between those.

It's a defense that Prosser, Roggensack, and Ziegler succumbed to, and one that Abrahamson, Bradley, and Crooks rejected entirely.

The latter three justices determined that Gableman's statement — "statement" is a crucial term of legal art in this case whose meaning as applied to the ad has never been sufficiently explored, imho — regarding Butler's causal connection with the rape (the others coyly attribute the message to "then-Judge Gableman's campaign committee") was arguably and provably defamation uttered in malice and as such is not availing of First Amendment protection.

Those justices emphasized — as has been repeatedly emphasized at this here blog — Gableman's own affirmations that he had made himself thoroughly familiar with all of the substantive and procedural circumstances of Butler's representation as an appellate attorney for Reuben Lee Mitchell and therefore had to have known that his — not his "campaign committee's" — teevee ad conveyed a false statement of fact. (Or, as the Commission puts it, Gableman lied.)

The three also tossed in a factor contributing to their determination that hadn't been addressed until, ironically, Gableman's lawyer James Bopp of Indiana brought it up during the proceedings. This has to do with the case citations that appear as text at the bottom of the teevee ad which, when investigated as Mr. Bopp had suggested, deviously point away from the fact that Butler's appeal on his client's behalf was ultimately rejected by the Wisconsin Supreme Court.

More later. Obviously there's much to say about these opinions.

Opinion of Prosser, Roggensack, and Ziegler
Opinion of Abrahamson, Bradley, and Crooks

Court shameful, dysfunctional: Former justice

Former Wisconsin Supreme Court Justice William Bablitch said it was shameful the court issued decisions that order two different outcomes. "I don't know what the Judicial Commission is supposed to do, flip a coin?" he said. "It's just further evidence of the deep divisions in the court and the dysfunctionality in the court. It's very discouraging."

Well, it can't be that dysfunctional. Just this week the court issued three unanimous decisions, two 6-1 decisions (Justice Prosser dissented in both), and one 4-3 decision, the latter being comprised of the unprecedented triumvirate of Justices Bradley, Roggensack, and Gableman in complete agreement.

What's caused a division are Gableman's "distasteful" shenanigans before he reached the court,* which apparently his colleagues are capable of setting aside when it comes to the business of deciding unrelated cases. But the fact that Gableman has demonstrated a high degree of competence on the bench doesn't mitigate the seriousness of the ethical violation three of those colleagues believe — with very good reason — he committed in furtherance of securing that seat.

* And after, at least through his lawyer's own distasteful shenanigans. Recall that Justice Crooks underwent a sea change in his view of the defendant's motion to recuse in State v. Allen, after Crooks got wind of James Bopp's performance at Gableman's demand for summary judgment hearing in his ethics case last September in Waukesha.

And who can say whether those shifting waters lapped onto the shore of Justice Crooks's decision to refuse mooring Gableman in the safe harbor of summary judgment. [That's enough metaphor — ed.]

Quote of the day II: Gableman edition

Remarkable:

"Attorney Bopp's comments are irrelevant to the disciplinary proceeding ... " — Marquette professor of law Rick Esenberg

This is a unique perspective, considering the Attorney Bopp comments at issue were delivered before three appeals court judges last September during the disciplinary proceeding.

That is, they're part of the record of the disciplinary proceeding, which is slated to go before the Wisconsin Supreme Court on April 16 and they go directly to the question of Gableman's willfulness to violate the Wisconsin code of judicial conduct, precisely the manner of behavior the Wisconsin Judicial Commission alleges.*

In fact Bopp's mini-jeremiad issued forth in response to questions from the panel of judges requesting Bopp, the legal agent of Gableman, to explain the rationale behind Gableman's teevee advertisement, the very object of the disciplinary proceeding.

Perhaps Prof. Esenberg is distinguishing between Bopp's presentation on the record and his presentation to reporters after the hearing.

But not even Gableman, in his motion to recuse another Supreme Court justice from hearing oral arguments in the disciplinary proceeding, distinguishes between the two sets of commentary:

In [his separately authored concurrence], Justice Crooks condemned statements made by Attorney James Bopp, Jr. ... during oral argument before the Judicial Conduct Panel and to the press afterward.

Gableman seems to think they're mighty relevant indeed, as he's clearly out to protect his own bacon from the ill-advised public declarations of own attorney.

More specifically, he's looking to insulate himself from the perception Attorney Bopp's commentary created in a member of the tribunal before whom Gableman is to be judged, which is certainly one of the broader ironies to have emerged pursuant to this whole escapade.

Here, by the way, is a useful quote from Liteky v. United States, the sole case Gableman cites in his motion to recuse Justice Crooks:

The judge who presides at a trial may, upon completion of the evidence, be exceedingly ill disposed towards the defendant, who has been shown to be a thoroughly reprehensible person. But the judge is not thereby recusable for bias or prejudice, since his knowledge and the opinion it produced were properly and necessarily acquired in the course of the proceedings, and are indeed sometimes (as in a bench trial) necessary to completion of the judge's task.

That's Justice Scalia, writing for a majority of the Court, supposedly in support of Gableman's efforts to un-preside Patrick Crooks.

Gableman's disciplinary proceeding is currently in its third year.

* The WJC has said repeatedly that Gableman "lied."

Right-wing condescension in Wisconsin, Day Two

CAPITOL KAOS, Agent Rick reporting for Faux News duty

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Walker judicial team brings the Gableman defense

Governor Scott Walker's judicial selection committee (.pdf; 3 pgs.) includes Michael Best & Friedrich partner Eric McLeod, who represented Supreme Court Justice/Gableman in the latter's unsuccessful bid to have a Wisconsin Judicial Commission ethics complaint against him dismissed.

Gableman was accused of lying in a Statewide election in 2008, Year of Our Lord. McLeod and Jim Bopp, a lawyer from Indiana, prepared Gableman's defense. I understand it's fallacious to attribute the client's views to his counsel — after all, that's what Justice/Gableman did in his unprecedentedly sleazy teevee ad* — but the judiciary is all about politics for the Walker administration, so why shouldn't it be for everybody else?

Put another way, you don't want to be cynical, but they force you.

Therefore if this is the message Walker wants to send, good for him, and if it energizes his detractors, all the better. Go for it, by all means.

On the other hand when three of the four self-described "conservative" justices who recently invented a novel form of judicial authority — which otherwise is supposed to derive from the State constitution, by the way, a connexion claimed yet ironically denied by the four "conservatives" to both the State's elected representatives and the trial judge in that case — are subject to ethics investigations and/or formal ethics complaints, it's presumed that Walker's selection committee couldn't do much worse.

Scott Walker's team also includes a fellow Gableman alumnus of Hamline University who, Walker's crack communications specialists advise us, "is currently practicing in the area of . . . Land Lord Tennant Law."

Good grief.

* Moreover, McLeod's co-counsel went so far as to malign the integrity of his client's rival by belittling him as the "type of person" who would take on a criminal case. In fact Bopp, Esq.'s remarks** were so offensive to those concerned with professional ethics that they induced Justice Patrick Crooks to switch his vote from dismissing a set of motions to have Justice/Gableman recused from criminal cases to granting those motions. That alone is a big deal and an even bigger deal that Crooks decided to make public his decision and his reasons for making it.

And it's why Lester Pines ruefully opined that nobody whoever practiced criminal defense — the right to which is guaranteed by the U.S. Constitution — could ever be a Supreme Court justice, which is most probably true, thanks to the cynical manipulation of Wisconsin's system of electing them by dishonest Republican politicians like Mike Gableman.

As was noted here in April, 2008, it's not the voters who can't be trusted when it comes to electing Supreme Court judges. It's the candidates.

** And it's not fallacious to attribute the counsel's views to the client.

Wisconsin Supreme Court quote of the day

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

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

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

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

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

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

Sounds familiar.

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

Justice Crooks "eager to damage" Justice Prosser

Or so claims an overly paranoid Justice Prosser.

Now that's one for the annals of ridiculous "defenses."

This motion [to recuse] expects that Justice Crooks will understand that he cannot participate as a judge in this case.

Well, yeah, he probably understands that he may not sit on the panel.

Good grief. Republicans have no principles, "conservative" or otherwise.
Apart from saving their own asses from any consequences, of course.

Of Michael Best's "horn book" Civil Procedure

Looky here:

Because the Wisconsin Supreme Court tied over the ethics complaint, Gableman couldn't argue to the board that he had won and the State should cover his fees, Michael Best & Friedrich's chief attorney Jonathan Margolies said in the letter.

Well. Isn't that something. I have been saying for years that Mike Gableman failed to win his ethics case, because the three-judge panel below the Supreme Court convened on Gableman's motion for summary judgment, and pursuant to his own motion, Gableman was unsuccessful. And it also happens to be a conclusion in which Justice N. Patrick Crooks, who has been a judge for more than three decades, concurs.

(I reckon Crooks, J. knows a thing or eleventeen about legal procedure.)

Therefore does the ethics complaint against Gableman remain pending.

Mr. Margolies might presumably know better than anybody, as it was one of his colleagues at Michael Best who participated in Gableman's defense.* This space's conclusion was based on an examination of the statutory framework governing the civil procedure with which the State deals with ethics allegations against judges. This space does not make substantive legal claims without having undertaken such examinations.

So it amuses me no end to recall that Richard Esenberg, a professor of the law at Marquette University, would criticize me by asserting that my view of the Gableman case's procedural posture was informed merely by "a reference to horn book Civil Procedure" which "does not cut it here."

A "horn book" is something like a Cliff's Notes that first-year law students use to prepare for exams. Esenberg is billed as a "prominent Milwaukee attorney" by Wisconsin Public Radio but his condescension on occasion most certainly does not comport with that description.

Now perhaps Esenberg can direct his scorn at MB&F's chief attorney.

I am always suspicious of Esenberg's claims, and you should be too. Yet Wisconsin Public Radio and other local media outlets continue to present him as a disinterested academic, whereas he's as partisan as they come.

Esenberg's former research assistant's claims are mighty lame as well.**

Feet of the master and all that, apparently. Laughable.

* At no charge, as it turns out. And a classy defense it was indeed.

** I trust that was the end of atrocious legal analysis from the faculty blog, since Prof. Esenberg is abdicated as one of the website's editors.

Supreme Court quotes of the day

¶47 The majority exhibits an unbridled exercise of power. What I mean by that phrase is that the majority ignores the normal restraints of an appellate court such as following precedent and letting the parties frame and argue the issues. Instead, it unnecessarily reaches out to overrule a prior decision that even the State acknowledges "was never raised" previously and "is not part of this case." Why does the majority do this? Because it can.

— Ann Walsh Bradley

That majority: Roggensack, Prosser, Ziegler, and Gableman.

¶78 The majority doesn't stop with overruling Mikkelson, but rather proceeds to decide that a warrantless entry into a person's home should be evaluated on the basis of whether the law enforcement officers are dealing with an offense that is "a jailable or nonjailable offense."*

¶79 I sincerely doubt that a law enforcement officer will easily be able to determine, perhaps in the middle of the night, and certainly without the knowledge of what offense the prosecuting authority will ultimately decide to charge, whether the offense involved "is a jailable or nonjailable offense."

— N. Patrick Crooks

Those are excerpts from concurring — not dissenting — opinions.

That is, both Justice Bradley and Justice Crooks (together with Chief Justice Abrahamson, who joined both concurring opinions) could have easily reached the same result in favor of the government as the "conservatives" did without overruling State v. Mikkelson, a 2002 decision of a Wisconsin court of appeals, a decision that both parties agreed had no bearing on the question they were in court to resolve: the correct formulation of a circuit judge's instruction to a jury.

If the majority's reaching out to overrule someone is not a blinding examplar of so-called "judicial activism," then I don't know what is.

State v. Ferguson, 2009 WI 50.

* a.k.a. "policymaking." Of note also is the fact that the offense in question in this case, disorderly conduct, while a "jailable" misdemeanor according to State law, is sometimes charged under a municipal ordinance, where the penalty is simply a fine, despite the language of the State statute and the ordinance being identical.

CFAF "deemed" criminally inept: Part 8

First, don't miss the very latest installment of

DA Mike Gableman: Real Life Adventures in Crimefighting

Now, nine more cases or, "Lordy, lordy, look who's a Moran."

[Psst. For a secret message to CFAF et al, click me]

32. State v. Booker 2004AP1435-CR

Two appealed convictions for showing porn videos to three girls ages 12, 13, and 14 both upheld by a unanimous opinion from Justice Roggensack, another of the court's most "conservative" judges. The "liberal" Chief Justice concurs but Justice Butler doesn't join her opinion, he only joins Roggensack's. CFAF is forced to agree.

33. State v. Brockdorf 2004AP1519-CR

Butler dissented, and joined another dissent by Justice Crooks, along with "traditionalist" Justice Prosser, in a case involving the investigation into a Milwaukee police officer, Brockdorf, and her statements pursuant to a shoplifting arrest that allegedly got a little rough 'n' tumble.

Even more troubling is that the heist was from Kohl's. I loves me some Kohl's. I've picked up a few nice IZOD rayon dress shirts at Kohl's for like 12 bucks. What kind of a shoplifter steals from Kohl's, when all he needs to do is rummage through the 70%-off rack to find such a deal? A lazy one, that's what! He probably deserved a good whack on the side of the head.

Anyway, Butler agreed with the police officer Vanessa Brockdorf that her statements made during an investigation were compelled, and should have been suppressed for that reason. Butler went on to set down a couple of paragraphs on the subject of trust between the public and the police, and how these investigations into rough play by the cops need to be especially careful and rigorous. It's a fair point, especially in this town.

Nevertheless, because he is honest, Butler counts this case "against" himself, despite the fact that the party Butler sides with is an actual law enforcement officer, yet another example of how these rulings contain a number of subtleties that Prof. Esenberg's suggested methodology simply can't take into consideration.

And, because CFAF doesn't challenge a single instance of Butler siding with a defendant, it's happy to agree with this one too.

34. State v. Smith 2004AP2035-CR
35. State v. Tiepelman 2004AP914-CR

And two more. In Smith, Butler and Prosser join the Chief Justice's dissent where the majority upheld a drunk driving conviction in the face of Smith's challenge against a juror where Smith alleged a conflict because the juror worked for the Milwaukee County district attorney's office. Coincidentally, Smith addresses the very question of objective vs. subjective tests that I discussed below.

Butler counts this case "correctly" "against" himself and CFAF rushes to agree.

In Tiepelman, Justice Butler again voted with the court's most "conservative" members to reverse a criminal conviction. Naturally, CFAF agrees, but you'll never hear CFAF or Jessica McBride refer to either Justices Prosser or Wilcox as "pro-criminal" on any particular decision. Ever. Such is cheap partisan hackery.

36. State v. Fonte 2003AP2097-CR

In Fonte, Butler voted with a unanimous court (minus Justice Crooks, who did not participate) to uphold — after the court of appeals reversed — Fonte's conviction for homicide by intoxicated use of a boat. CFAF can't not agree.

37. State v. Dubose 2003AP1690-CR
38. State v. Knapp 2000AP2590-CR

Two cases that have been already discussed in great detail here and elsewhere that there is no need to rehearse at this point, suffice to say that Butler voted to reverse a conviction in Dubose, and wrote to exclude evidence in Knapp where that evidence was the product of a deliberate withholding of the constitutionally guaranteed Miranda warning.

Contrary to uninformed opinion, there was anything but clear guidance from the U.S. Supreme Court in Knapp, and the two cases that local radio howler/monkey Charlie Sykes says Butler "ignored," Butler actually spent 46 pages of the opinion addressing. Because, you know, if you write anything less than 47 pages discussing two U.S. Supreme Court decisions in excruciating detail, Sykes gets to count that as "ignoring."

I pause to reflect one more time — Why does anyone take any of these right-wing bozos seriously at all, with outright lies like that?

In any event, Butler, gentleman that he is, nevertheless counts both cases "against" himself in deference to the stupid GOP games of CFAF, and CFAF certainly isn't going to raise any question against that.

Another pause to reflect. How is it that CFAF can agree with Butler's list in so many instances, and in every single instance where CFAF disagrees with Butler's list, CFAF is dead wrong, yet CFAF's figure is nearly 40 percentage points away from the truth?

Because, dear reader, CFAF originally extracted the number from its balloon knot pucker hole, that's why, and its pathetic attempt to justify it in the meantime is a stone flat-out Opéra Bouffe of lies, screw-ups, and general boneheadedness.

39. State v. Love 2003AP2255

This is a good one. CFAF just arbitrarily removes this from the list, saying, "Not Classified Criminal By The Court." Notice the docket number beside the case name doesn't contain the holy -CR suffix. Yes, and? Again, did CFAF even care to read State v. Love? Because it is a criminal case. Last I checked, robbery at gunpoint was a crime. And ineffective assistance of counsel is often a legitimate means to attempt challenging a conviction. And postconviction motions are a regular component of criminal cases. Even CFAF could tell if they looked, because it says postconviction motion. There are no convictions in any types of cases other than criminal cases.

Hmm, let's see, what other features are there of criminal proceedings. Jury trials? Check. Evidentiary hearings? Check. Reversals of the court of appeals that remand a case back to the circuit court for a hearing on the newly discovered evidence? Check. All of which figure prominently in State v. Love. In fact, the latter is the disposition: The defendant, says Justice Butler, writing for the majority, at least deserves a hearing — but that's all, just a hearing — on this newly discovered evidence. So ordered.

Now I'll admit, I can't tell you why the case number doesn't contain the -CR suffix. Maybe it has something to do with a reference to the court of appeals "summary disposition" in the very first sentence. Is that a term of art that alerted somebody working in the clerk of courts' office to file the case a certain way? I have no idea, to be honest. Maybe somebody can fill me in.

But, here's the deal. IT DOESN'T MATTER. Butler is being attacked, baselessly, on his criminal record, and now here are these buffoons insisting that Butler cannot defend himself against their attacks by making reference to the very cases they are using to attack him.

As Larry David said to Richard Lewis, "What are you, nuts?" Or, as the kids say, "Teh stupidz! It Burns!!!11!"

Oh well, as Jessica McBride says, even if you disagree with this one case it doesn't affect the overall number. No biggie; Tee Hee!

Huh.

Well how about if you disagree — and demonstrate why, with proof — with about 100% of CFAF's idiotically incorrect classifications, how does that affect the overall number?

Lordy, lordy almighty god help us all. Wonder why I'm amazed that an actual professor of law continues to laud McBride's work, which obtained the identical result as did CFAF's? There's another reason. I've lost count of those reasons at this point.

40. State v. Moran 2003AP561-CR

Another classic CFAF boner.

CFAF disputes this one: "deems w/ Criminal." Yes, it's true, you, the people, through your elected representatives in the State legislature, are "criminals." Okay, okay, wise guy. Never mind Glenn Grothman then.

Moran is a unanimous decision authored by Justice Prosser with two concurrences by Wilcox and Roggensack dealing with a postsentencing motion to obtain DNA evidence under a due process of law theory. The unanimous court addresses Moran's motion in light of a number of statutes passed by the legislature seven years after the events leading to the defendant's conviction.

In short, the unanimous court is directly following the commands of the legislature in granting the motion. Crimefighting superhero Mike Gableman, speaking in that strange half sing-song half vacuous-GOP-talking-point-reciting voice, constantly accuses Butler of "legislating from the bench" and imposing his personal preferences on the will of the people and blah blah blah. Has Gableman ever supported any of this? Of course not. Can it be easily rebutted, with examples? Of course it can. Just read State v. Moran.

As for the result in Moran itself, certainly even a conservative Republican would appreciate having the opportunity to present new evidence that came to light not only through recent technology but through more recently passed legislation by the peoples' representatives? Or do conservative Republicans really place such absolute blind faith in the government and its police force and prosecutors? Because if they do, then conservative Republicans have sure changed their attitudes toward the government since I was just a little clump of DNA meself.

ttfn

To part 9 ...

Gableman: Over the rainbow and out to lunch

Last Tuesday during his debate with Wisconsin Supreme Court Justice Louis Butler, Burnett County Judge Michael Gableman let fly this startling little shot across the bow:

[Butler] has a substantial and consistent history of legislating from the bench and we don't have too look far or long to find a series of cases that reflect that. I think what he said here today sounded very good, but in addition to all these longstanding case precedents he cited, I remember reading one case where he cited The Wizard of Oz and based decisions on social science studies that were manufactured at colleges and universities.

Gableman was apparently referring to a 2005 decision of the Wisconsin Supreme Court called State v. Dubose (.pdf; 63 pgs.).

Gableman's remark is instructive for a number of reasons, not the least of which is that it raises the question whether he even knows what he's talking about. As for 'citation,' it's a term of art, and it means something specific to lawyers. Aspirants to the Wisconsin Supreme Court, in my opinion, shouldn't play fast and loose with legal terms of art for the sake of mugging in front of the crowd.

It's not only misleading, it's dishonest, because one would expect Judge Gableman to fully understand what is meant by them.

First of all, Dubose was authored by Justice Patrick Crooks, not Butler. Second, Dubose embodies a very complicated due process analysis that involves revisiting a number of Wisconsin and U.S. Supreme Court cases in light of a considerable amount of more recently obtained empirical data having to do with the reliability of eyewitness evidence, and in particular evidence gathered through a certain type of police identification procedure. To put it mildly, Dubose does not lend itself to one-liner soundbites, especially the utterly nonsensical one offered by Gableman.

And one has to be especially careful reading Dubose because it contains three separate dissents, by Justices Wilcox, Prosser, and Roggensack. Each takes issue with the majority opinion for different reasons. It requires some serious work just to tease out the competing strands of analysis in Dubose, let alone portray it accurately for the layperson. To reduce it to, "He cited The Wizard of Oz" is, on a charitable reading, an act of negligence and, to my mind at least, raises a concern as to Gableman's suitability for the position he seeks.

While Butler joins Crooks's DuBose opinion in full, he writes separately only to shed light on a failure he detects in Justice Roggensack's dissent. To wit, Roggensack relies, at one point, on the very data she had derided as "disputed social science theory" only a few paragraphs previous. That's about the entire thrust of Butler's very brief concurring opinion. His apparent sin, to return to Gableman's dishonest characterization, was to criticize Roggensack's skepticism over the empirical data by saying this:

Unless, and until, we improve eyewitness identification procedures so that the likelihood of irreparable misidentification is significantly reduced, we can no longer proceed as though all is good in the Land of Oz.

That's it. A figure of speech, hardly the "citation" that Gableman would attempt to have us believe.

Incidentally, our good friend Daniel Suhr is also completely wrong (surprise) when he claims that Butler wrote to "especially defend" the majority's use of the empirical data. He was not "especially defending" the majority, he was "especially criticizing" one of the dissents for a glaring error of reasoning. It is notable, however, that Suhr also makes an issue of Butler's offhand reference to the "Land of Oz." It's almost as if Gableman was presented with Suhr's "Research Briefing" in preparation for his debate with Butler. D'ya think?

Suhr, by the way, can be more easily excused for his ineptitude than can Gableman, since Suhr hasn't sworn his lawyer's oath yet. (If there's a god in heaven, my humble prayer to her or him is that Daniel Suhr pulls Justice Butler for his swearing-in ceremony.)

Gableman's portrayal of empirical data as "manufactured" at colleges and universities is also quite telling, and he is kidding himself — and the Wisconsin electorate — if he thinks he'll just be able to laugh off relevant empirical studies prepared by the U.S. Department of Justice if and when he finds himself on the Supreme Court.

It's often said that there's a crock of gold at the end of the rainbow, but it appears that Judge Gableman is entertaining us to a crock of something else, something more fragrant than gold.

[Please visit the iT Butler/Gableman archive.]

CFAF "deemed" criminally inept: Part 5

11. State v. Lackershire 2005AP1189-CR

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

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

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

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

12. State v. Howell 2005AP731-CR

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

13. State v. Post 2005AP2778-CR

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

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

14. State v. Nelis 2005AP1920-CR

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

15. State v. Johnson 2005AP573-CR

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

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

CFAF is denied any further alcohol.

16. State v. Townsend 2003AP000429-CR

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

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

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

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

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

17. State v. Jensen 2004AP002481-CR

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

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

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

18. State v. Bruski 2005AP1516-CR

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

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

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

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

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

19. State v. Muckerheide 2005AP81-CR

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

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

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

20. State v. Parent 2005AP661-CRNM

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

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

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

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

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

Forward!

ttfn

To part 6 ...

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

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

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

Prosser: I have never seen her charge anybody once.

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

Prosser: Yes.

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

Prosser: Yes.

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

Prosser: Yes.

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

Other detective: You're aware of it?

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

Detective: Okay.

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

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

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

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

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

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

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

Wisely, in my humble estimation.

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

Aina? Inquiring minds want to know.

Prosser allies admit court is "pro-business"

As the Brew City Brawler perceptively discovers today.

When one considers that most of the decisions in the report the Brawler is discussing reduce to "Injured Plaintiff v. Business," the Wisconsin Civil Justice Council's advocacy is troubling, as it suggests its endorsement of Justice Prosser is based on an assumption that he has already prejudged future cases in favor of the latter adversaries.

In fact the first person to reject it should be Justice Prosser.

It's also notable that the very first decisions the WCJC cites, 2009's Horst v. Deere and its counterpart Godoy v. E.I. DuPont, contain writings either authored or joined by Justice Prosser openly lobbying for a sea change to long-accepted Wisconsin products liability law.

And they aren't making recommendations to the State legislature, as is occasionally the case with the court's opinions. Rather, the so-called conservative justices want the court itself to effectuate a radical alteration in the law despite — as Justice Crooks smartly notes — neither party to either case urging the adoption of the novel doctrine which — not coincidentally — appears in a treatise prepared by conservative academics,* the Restatement (Third) of Torts.

In different circumstances, this is what political conservatives denounce as "judicial fiat." Not that anybody should expect philosophical consistency from them. They're simply opportunists.

Who knows why they just can't admit that; it's as plain as can be.

* Principally Aaron Twerski, a distinguished Marquette Law alumnus.

Judicial elections: What you need to know

How much money they are raising and spending.

The important stuff.

Also which judge is accused of lying to get himself elected.

"Crooks recently condemned comments by Gableman's attorney ..."

Stuff and nonsense. It's a sad day for the Fourth Estate when the Associated Press is running Badger Herald rewrites.

"Prosser, J., did not participate."

[Dec. 2]

UPDATE 1: Justice Prosser is ill.
UPDATE 2: The petition is withdrawn.

Unstated whether 2 follows directly from 1, but it was among the "issues raised" in the Supreme Court of Wisconsin's November 30 order. You'd expect the withdrawal to come about on account of the substantive issues raised, but this is primarily about political power for these folks.

And they most likely don't want to roll the dice on a 3-3 split. Which may give some indication as to their confidence in their legal argument. Keep that in mind if and when they get around to re-filing their petition. They still have three in the bag but they don't want to try and persuade Justice Crooks (who may well be the most reasonable one of the bunch).

UPDATE 3: '[Law] specifically precludes this procedural manipulation.'

Ya gotta love this stuff. I mean, it's Republicans making a complete mockery of judicial process, but you have to keep your sense of humor.

UPDATE 4: This from the plaintiffs in the federal redistricting action.

[/Dec. 2]
__________________________________

Wonder how come.*

I get the heebie jeebies when this court starts asking about jurisdiction.

And why even bother asking. They just make it up any/way.

* By the way this is the lawsuit where a group of Republican Teactivists are suing the State Government Accountability Board, on a theory that the GAB actually sat down and read the law drafted by those same lawyers who are representing the Republican Teactivists in the present case, passed by both Republican-controlled legislative houses and signed by Republican Governor Scott Walker. In other words, reading the law and repeating it back to legislative clerks is now a cause of action in the State of Wisconsin. Sounds facetious, but I'm afraid that's accurate.

It's as though the GAB was set up so the suit could be filed because what the WISGOPers are attacking is in fact their own recently enacted law.

In a word, scapegoating.

Because WISGOP v. WISGOP sounds ridiculous, doesn't it? Yet that's exactly what the Republicans, through their silk stocking attorneys, are up to with this: suing themselves. And they've effectively forced the State Government Accountability Board into the position of "adversary."

I wonder if they can sue themselves for ineffective assistance of counsel, because they shelled out hundreds of thousands in fees for, inter alia, this one gigantic boner they're trying to have rectified by judicial fiat.

The GAB's interpretation is not even a close call. It's plain meaning.

Face it, this gang is terrified at losing the Senate. One or two of these Senate recalls are more important than knocking off the Desperado.

Moreover if the Republican Teactivists' theory is correct, then the recall elections that were held last summer were held in "unconstitutionally malapportioned" districts as well. Although the petitioners have not identified at what point in time the current electoral districts became "unconstitutionally malapportioned," it clearly would have been before last summer, because unconstitutional malapportionment was precisely the evil that legislative Republicans undertook to remedy last winter.

So if Republicans are crowing about Democratic "failure" in contesting those districts — and they are — then what harms are a couple more contests in "unconstitutionally malapportioned" districts going to cause?

That's for the next round of questions, I guess.

Memorandum in Support of Petition (Nov. 21)
Supreme Court Order (Nov. 30)

CFAF "deemed" criminally inept: Part 11

As promised — or, depending on one's perspective, threatened — the next entry in that which has now become what singer/songwriter Paul Simon, in his most severe bowl-haircut days, might have called "a simple desultory philippic." We last left off at the Coalition for America's Families [sic] (CFAF) case 60., State v. Stuart.

I'm going to skip the next case, State v. Richard A. Brown, just because. I figure if CFAF can simply arbitrarily and capriciously exclude it from "its" list of cases, which it did, then so can I.

Unlike CFAF, however, I will get back to it.

If there is any justice or truth, then CFAF these days is hiding its collective head in abject shame. Not so, incidentally, for CFAF's leading cheerleader, chief helper-elf in legal analysis and statistics, and alleged "journalist," who has lately taken to not just lying, but lying through her teeth, rather than check up on a handful of easily verifiable facts. And this is apparently what they're teaching in university Reporting 101 classes nowadays. Given the choice, I'm inclined to humor, but that's just sad. Profoundly so.

So evidently in certain quarters, there not only exists neither justice nor truth, there exists in their stead a willful, deliberate, and determined effort to avoid both at any costs.

On a less serious but equally pathetic note, the next case, State v. Hale, is the final case on the list of 62 Wisconsin Supreme Court decisions that CFAF appropriated from the Butler campaign upon which to perform its extravagant litany of nefarious hijinks.

I quote directly from the CFAF document in my possession:

There are 6 cases missing from [the Butler campaign's] analysis, a yes is where CFAF deems Butler w/ the criminal.

Thereupon follows, I kid you not, the names of seven cases. How manifestly not surprising and what a classic examplar of CFAF's relentlessly desperate fumbling and bumbling. As I've observed previously, you simply cannot make this stuff up.

62. State v. Hale 2003AP417-CR

Rick Esenberg of Marquette Law School wrote recently, "[She] says that she has the 'against' and 'for' numbers. Let's take her at her word." The statement is by turns astonishing and laughable. State v. Hale is yet another fine example of why.

Hale contains five separate opinions: the majority opinion by Justice Bradley, and concurring opinions by Chief Justice Abrahamson, Justice Wilcox (joined by Justices Crooks and Prosser), Justice Prosser (joined by Justices Wilcox and Roggensack), and Justice Butler.

When judges write concurring opinions, it means they join the majority opinion's central ruling, which in this case was the unanimous affirming of Hale's three criminal convictions, but they would have reached that result through different reasoning, based on their interpretation of the underlying numerous and varied legal questions that lead to the result.

I don't mind admitting that it would probably take me at least two days of close analysis, research, and writing to tease out each separate legal question from Hale (and there are many other multi-opinion examples like Hale) and assign each judge's disposition on each question as either "pro-defendant" or "pro-State." And, even then, such assignments would be subject to reasonable review and objection from the likes of Rick Esenberg. Moreover, he would still need to present his own analysis as to why any such assignment was misapplied by your humble reviewer. And then rebuttal and so forth.

At the same time as imploring us all to take a demonstrable prevaricator "at her word," Esenberg has himself suggested a number of alternative denominators — other than the criminal convictions themselves — by which "for" or "against" the constitutional rights of criminal defendants might be assessed. Some of these suggestions certainly have merit.

But if somebody imagines that the prevaricator in question — or anybody — could have performed a similar task on 70 decisions in two days, well, then that somebody needs their head examined, not to put too fine a point on it (or on the examined head).

To be fair, Esenberg did at least distance himself from the term "pro-criminal" at one point during his series of discursive academic vacations before allowing, "I think someone tried very hard to get a very low number and may have allowed that desire to get in the way of his or her better judgment."

One might accept this as the Understatement of the Millennium with respect to both CFAF and its helpful elf's now-thoroughly debunked projects, but Esenberg was referring to the Butler campaign(!).

It's abundantly clear now that the Butler campaign did not "cook" any number. The cooking, frying, baking, basting, broiling, barbecuing, and sauce-reductioning occurred entirely in the comedy kitchens of CFAF and its prevaricating elf.

If the Butler campaign committed any misstep at all, it issued from Justice Butler himself during his interview with the Milwaukee Journal-Sentinel editorial board when he said, "I voted to uphold the convictions 75% of the time." I recall immediately thinking, on hearing this, 'Wait until Esenberg gets a hold of that one, he'll be on it like a dog with a bone.' Which is exactly what happened.

What Butler should have said — and I'm fairly certain, without even asking him, what he meant to say — was that in 75% of the cases involving criminal convictions, his vote did not disturb the existing conviction, which remained completely intact. And that is correct to within less than two percentage points, as I've shown, through my laborious presentation of each individual case to which Butler was making reference.

"Laborious," incidentally, is a reference to the impositions made on the kind reader, and not to those happily engaged by the writer.

Nevertheless, CFAF didn't "deem" State v. Hale "w/ Criminal," but rather passes it by without comment.

Thus ends the list of cases that not only couldn't CFAF produce itself, instead relying on material produced by the Butler campaign, it manipulated and twisted and otherwise transparently schemed and scammed the cases into confirming beyond a shadow of any doubt its own sleazy machinations informed by profound incompetence: its own and, as it turns out, that of its helpful prevaricating elf.

Considered separately, sleazy machinations and profound incompetence are bad enough. But profoundly incompetent, sleazy machinations are a quite remarkable addition to the panoply of preexisting "family values." A remarkable and singularly unwelcome addition, in my own considered estimation.

I'll get to CFAF's remaining seven (or is it six? Math hurts!) cases after State v. Richard A. Brown.

ttfn