How Patrick McIlheran lies for the WISGOP

Perfect example right here:

One Dane County judge rules that collective bargaining reform is unacceptable ...

This is your Journal Communications, Inc. brand of journalism.

But as one Dane County judge very clearly explained, both the federal Constitution and the Wisconsin constitution confer the judicial power equally to both higher and lower courts.* And as one Dane County judge very clearly explained, her ruling was directed at "the March 9, 2011 action of the Legislature's Joint Committee of Conference" and not whether the Walker administration's policy was acceptable or not.

Journal Communications, Inc.'s Patrick McIlheran is flat-out lying.

On the other hand, the Wisconsin Department of Justice, which is "representing the Republicans," makes repeated explicit defenses of Republican political policy in its latest filing with the Supreme Court pursuant to its attempt to have that court legislate from the bench.

The DOJ, on behalf of Scott Walker's infamous building maintenance supervisor Mike Huebsch, has gone so far as to suggest that the one Dane County judge, Maryann Sumi, violated the State code of judicial ethics by responding to the DOJ's petition for a supervisory writ (it's not an appeal, as has been widely reported). Now that is remarkable.

The Supreme Court, which does indeed have superintending authority over the (lower) circuit courts, on May 4 ordered Judge Sumi to file a response to the Huebsch/DOJ petition. Yes, ordered. The DOJ suggests that Judge Sumi should have exercised her option not to respond. The Wisconsin Rules of Appellate Procedure, at Wis. Stat. § 809.51(2), allow that a respondent to a petition for supervisory writ "may file a letter stating that he or she does not intend to file a response."

In other words, a respondent is not exempt or excepted from the Supreme Court's order but may disobey an order of the Supreme Court. Respondents to petitions for a supervisory writ are not limited to "court[s] and the presiding judge[s]," but the petition may be filed against "other person[s] or bod[ies]." And clearly Judge Sumi is in a different position vis-à-vis the Supreme Court than other persons or bodies not courts and presiding judges. Yet the Wisconsin Department of Justice suggests she should have disobeyed the Supreme Court's order.

Obviously Judge Sumi did not disobey an order of the Supreme Court.

And for not disobeying the Supreme Court's order, the Department of Justice is now veiledly threatening to file a motion for recusal against Judge Sumi, despite the fact that the ultimate determination for Judge Sumi's disqualification from the case of Ozanne v. Fitzgerald resides with Judge Sumi, once again, according to the black letter State law.

So at this point the Department of Justice is merely throwing stuff against the wall to find out if any of it will stick, in the course of its "representation of the Republicans." Thus whose impartiality is under question here is pretty obvious. And it sure ain't Judge Sumi's.

All of which demonstrates at least three things: (1) the ideological zealotry of Deputy Attorney General Kevin St. John, (2) Attorney General J.B. Van Hollen's acquiescence to Mr. St. John getting on this breakaway, and (3) the WISGOP Republicans' abject terror at attempting to have their union-busting bill passed by a non-illegal procedure.

McIlheran's bald lie is put forth in service of advertising his appearance tomorrow morning on another Journal Communications, Inc. buffoon's teevee show, Charlie Sykes's Sunday Insight [sic], which runs on Journal Communications, Inc.'s teevee station, TMJ-4. And of course Sykes is also an employee of Journal Communications, Inc.'s radio station, WTMJ.

There you have it, Journal Communications, Inc.'s corpo-blanketing of Milwaukee media with conservative Republican talking points. Because I wouldn't expect a discussion of the Rules of Appellate Procedure among Charlie Sykes and his guests tomorrow, who also include one of the most absurd conservative Republican political hacks in Wisconsin, Brian Fraley.

Roughly as absurd as the political hacks at Journal Communications, Inc.

* Matter of fact the same principle was invoked here in defense of J.B. Van Hollen, which days of defending JBVH at this space are long gone.

Scott Walker and the separation of WISGOP powers

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[Wis. Stat. Sec.] 165.25(1) [The department of justice shall] appear for the state and prosecute or defend all actions and proceedings, civil or criminal, in the court of appeals and the supreme court, in which the state is interested or a party, and attend to and prosecute or defend all civil cases sent or remanded to any circuit court in which the state is a party.

165.25(1m) If requested by the governor or either house of the legislature, appear for and represent the state, any state department, agency, official, employee or agent, whether required to appear as a party or witness in any civil or criminal matter, and prosecute or defend in any court or before any officer, any cause or matter, civil or criminal, in which the state or the people of this state may be interested.

Here's another interesting and thus far overlooked tidbit from last Monday's marathon session of the Wisconsin Supreme Court, wherein Deputy Attorney General Kevin St. John concedes directly to the Chief Justice that the Department of Justice is appearing not on behalf of Secretary of Capitol Building Maintenance Mike Huebsch, but on the explicit direction of the governor, Scott Walker. And what Walker is complaining about is, ironically, a separation of powers violation.

During St. John's oral presentation, the Chief Justice is engaging the lawyer on some procedural posturings. Recall that while the hearings were underway in Dane County Circuit Judge Maryann Sumi's court in Ozanne v. Fitzgerald, Judge Sumi issued a temporary restraining order. A TRO is not a "final judgment" and the difference between a TRO and a final judgment is determinative of how Scott Fitzgerald and the other defendants may attack a judge's disposition, be it final or temporary.

In Wisconsin there exists a right to appeal final judgments, but if the defendant Republican legislators here wish to attack the TRO, they must be granted permission to do so by the court of appeals. Thus did the Department of Justice file a motion for permission to appeal a non-final order (the TRO) on March 21 with the District IV Court of Appeals.

The court of appeals declined to entertain that motion, but rather certified ("passed on," or "kicked upstairs," in the vernacular) the DOJ's petition to the Supreme Court. The Supreme Court announced nothing further with regard to that petition until June 3, when it issued an order consolidating it with the DOJ's petition for a supervisory writ, as in the interim between scheduling oral arguments on whether to entertain the supervisory writ, Judge Sumi did indeed issue a final judgment.

So the Chief Justice is wondering about from whence comes the DOJ's authority to bring the petition for a supervisory writ (a writ is a court order, and in this case the DOJ is seeking an order vacating Judge Sumi's disposition based on the Supreme Court's supervisory authority over the circuit courts). The petition for a supervisory writ was filed in the name of Mike Huebsch, but what the record transcribed below reveals is that the order came directly from Governor Walker himself, something Mr. St. John appears to be distinctly uncomfortable with admitting.

The exchange between the Chief Justice and the deputy AG, related to the foregoing issues of who gets to do what and when begins at 00:43:10 of Wisconsin Eye's video of the oral arguments and the CJ gets to the Walker's Point at 00:45:10. The ellipses are pauses, not edits.

CJA: Under what authority does the State bring this proceeding?

KSJ: The State brings this proceeding under [Wis. Stat. Sec. 165.25(1)(m) — see above].

CJA: 165 ... yes.

KSJ: 165.25, sub. 1m.

CJA: Point 25, one ...

KSJ: 1m.

CJA: What does that say, counsel?

KSJ: That provides, that says that the attorney general and I ... quote the statute [KSJ retrieves Volume 3 of the Wisconsin Statutes and Annotations] ...

CJA: 165 ... 25 ...

KSJ: It needs to be read in conjunction with sub. 1, but 1m provides that if requested by the governor or either house of the legislature ...

CJA: Okay.

KSJ: ... may ...

CJA: Did the governor make any request?

KSJ: Yes.

CJA: Is that on record?

KSJ: It's not part of the record for petition [for a supervisory writ]. The State appears in many actions at the request of the governor or on the legislature and wouldn't file that with the court. We'd be happy to do so if that were required.

CJA: Therefore, and represent the State. Okay, the court will take that under advisement. Is that what you're relying on, 'If requested by the governor, appear for and represent the State'?

KSJ: Mm hmm. In any matter in which the State or the people of this State may be interested. There's been a determination made ...

CJA: Oh wait, what about the sentence, "whether required to appear as a party or witness"? That clause.

KSJ: Mm hmm. In any ...

CJA: Well ...

KSJ: And prosecute or defend ...

CJA: Are you required to appear here as a party? Here?

KSJ: Uh, there's no requirement ...

CJA: Okay. So you're going on to, "and prosecute in any court," right?

KSJ: That's correct.

CJA: "In which the State or the people may be interested."

KSJ: That's correct.

CJA: Okay. This is one of the things that is ... and on page four of your Ozanne you rely on 165.25, but there you say only that the AG decides whether what's the best interest of the State so now you're relying on the governor, is that it?

KSJ: There is authority in this case from the governor, there is also authority in this court's precedent that says that the attorney general may appear before this court with or without the governor's approval to advance an interest of the State.

He goes on. But he's already admitted to the Chief Justice, who is more interested in the express language of the State statutes, that in this case what he's relying on is a request from the governor, Scott Walker.

So you have Republican Scott Walker, the chief executive branch officer, petitioning the Republican-controlled Supreme Court,* the top entity within the judicial branch, to in effect discipline a lower court because it ruled against his Republican pals and allies in the legislative branch. And what Walker is complaining about ultimately is a violation of the doctrine of constitutional separation of powers. That is one not-too-subtle irony.

Deputy AG St. John's pursed "mm hmms" indicate he was none too comfortable with the Chief Justice's line of inquiry. Witnesses at trial who answer "mm hmm" rather than "yes" are often admonished by the court for not speaking up clearly and affirmatively. I wonder why St. John was so reticent at providing this information, that the Department of Justice is acting on the direct order of Governor Scott Walker.

Because the named petitioner clearly has no idea what's going on.

Since Monday a slew of additional documents were filed with the State Supreme Court, but this space doesn't know whether Walker's directive to the DOJ is among them. It may well be quite an edifying read.

* Let's dispense with the "nonpartisan" façade for a moment. Everybody knows how many millions of dollars (and thousands of logically fallacious and unethical teevee ads) Republican-affiliated outfits have produced and spent to ensure and protect the current make-up of the court.

Wisconsin Supreme Court schedules goat rodeo

SCOWI oral argument preview: Mike Gableman is "tireless, indefatigable and brilliant." — Justice David Prosser 04/18/11

In re: 2011AP000765-W and 2011AP000613-LV

This morning's line-up:

State ex rel Mike Huebsch: 50 minutes (Maria Lazar [?])
Dane County Circuit Court: 15 minutes (Dean Strang)
Dane County District Atty: 15 minutes (Ismail Ozanne)
State Rep. Peter Barca (D): 10 minutes (Bob Jambois*)
State Sen. Mark Miller (D): 10 minutes (Lester Pines)
Sec. of State Doug La Follette: 10 minutes (Roger Sage)
Huebsch rebuttal: 10 minutes [Misc. DOJ]

The festivities commence at 9:45 a.m., Central Standard Time.

Now maybe the Wisconsin Department of Justice will explain how and why Wisconsin's Open Meetings Law is unconstitutional, complete with citations to relevant 17th century English parliamentary common law.

Livetweeting (hopefully).

* Jambois should feature among the highlights.

eta 01: Deputy AG Kevin St. John appeared for State ex rel Huebsch and Dean Strang's law firm colleague Marie Stanton appeared for the Dane County Circuit Court (Judge Sumi). Those are all the attorneys the court heard from by 12:10 p.m. before adjourning for lunch until 1:30, so that's only two lawyers down and five to go. Gonna be a looong day.

Hard to say where things are going to shake out at this point but — and, real superficial observation here — the court's so-called conservatives appear to be more inclined to sympathize with the DOJ's demand for what is essentially judicial activism and legislating from the bench.

eta 02: "17th century English parliamentary common law." Think I was joking eh? St. John actually invoked it, without being prompted. It's supposed to override the laws of Wisconsin. This is how the DOJ argues.

Res ipsa loquitur.

An extraordinary writ is a supervisory remedy

Affirmed the Wisconsin Supreme Court, yesterday:

A supervisory writ is an extraordinary remedy to prevent a court from refusing to perform, or from violating, its plain duty.

So, is that what Dane County Circuit Judge Maryann Sumi did?

No, of course not. Which is apparently why the same Wisconsin Supreme Court, by a majority composed of the same four conservative justices who just one month ago needed to invent a novel form of judicial authority, which it dubbed "supervisory/original jurisdiction," to avoid precisely the requirement the Wisconsin Supreme Court now affirms.

The court elaborates:

[A] petition for a supervisory writ will not be issued unless the duty of the circuit court is plain [and the circuit court's] refusal to act within the line of such duty or its intent to act in violation of such duty is clear.

I'm paraphrasing. Yesterday's majority supplies the underlining.

Not only did the Supreme Court, in Huebsch v. Dane County Circuit Court, fail to describe either what Judge Sumi's plain duty was or how exactly she refused it or intended to violate it — and yesterday the Supreme Court confirmed that a supervisory court must do both — in fact neither the term "plain" nor the term "duty" even appear in the court's June 14 order in the context of Judge Sumi's deliberations.

Thus may one puzzle as to how the Supreme Court might issue a supervisory writ without even addressing the criteria by which it exercises its authority to issue a supervisory writ, let alone explaining it.

Simple: Invent a novel source of judicial authority, what any self-respecting conservative jurisprude would do, of course. For we are assured they are conservatives, even by those judges themselves.

Granted, they are conservative Republicans. But conservative in the sense of the oft-invoked and sacred canons of "judicial restraint"? Considerably less so, expediency permitting. Indeed if anyone was carefully mindful of conservative principles of restraint, it was Sumi.

And, more remarkably, yesterday the court clarified that "a supervisory writ is dedicated to the discretion of the court of original jurisdiction."

That's ambiguous, but what it means is the supervisory writ is aimed at the discretion of the court of original jurisdiction. That is, it's the discretion of the court of original jurisdiction, and the alleged abuse of that discretion, which a supervisory writ is dedicated to supervising.

And in Huebsch, the court of original jurisdiction was the one named in Huebsch's petition, the one presided over by Dane County Judge Sumi. That's what original jurisdiction means: the first court to hear the case.

In fact the Supreme Court was the third court to have been presented the case, the second being the District IV Court of Appeals, which passed the Department of Justice's previous motion for permission to appeal on to the Supreme Court.* So how in the world could the Supreme Court exercise any claimed definition of original jurisdiction over this case?

Again, piece of cake: Slap together with some punctuation the court's supervisory authority and its power to hear cases in original jurisdiction.

The Wisconsin constitution empowers the Supreme Court with four separate avenues of authority: superintending (a.k.a. supervisory), administrative (which is not at issue in Huebsch v. Dane County), appellate jurisdiction (the Huebsch Court dismissed the DOJ's petition to exercise its appellate jurisdiction), and original jurisdiction. Original jurisdiction was off the table in March. As Justice Crooks flatly stated, "No petition for original jurisdiction ... was filed in this court by any party. . . . There is nothing 'original' or 'in the first instance' here."

The Department of Justice clearly understood this, as is evident from the entire procedural history of this case, and from all of the DOJ's paper filings. The Supreme Court maneuvered the DOJ into position to act as the Supreme Court's proxy in order to achieve the result that a majority of the Supreme Court sought. There is no other explanation.

There's certainly no other satisfactory explanation. Take a look at this bland assertion made by the Huebsch v. Dane County majority:

¶5 IT IS FURTHER ORDERED that the petition for original jurisdiction in Case No. 2011AP765-W is granted, State ex rel. La Follette v. Stitt, 114 Wis. 2d 358, 338 N.W.2d 684 (1983), and all motions to dismiss and for supplemental briefing are denied.

Case No. 2011AP765-W is a petition for supervisory writ, and not a petition for original jurisdiction. On the other hand, La Follette v. Stitt was a petition for original jurisdiction. The Huebsch majority does not tell us where exactly to look in La Follette v. Stitt to support its rationale; it merely cites the entire case. But presumably, it means this:

We granted the petition to commence an original action because this matter is publici juris and requires a prompt and authoritative determination by this court in the first instance.

However the (judge-made) doctrine of publici juris** is invoked in Stitt to justify the granting of La Follette's petition to the Supreme Court to accept original jurisdiction over his case. Indeed, Stitt itself cites to this prior caselaw: "If the matter is publici juris, this court may elect to take original jurisdiction if asked to do so." This underlining added.

Which the Huebsch Court wasn't asked. Its ¶5 is pure magical fiat.

Any conservative could tell you that.

Footnote footnote: Yesterday's footnote 6 is also pretty cute. It reads, "Wisconsin Stat. § 809.51 is the appellate rule that governs petitions for a '[s]upervisory writ and original jurisdiction to issue prerogative writ.'"

This is true as far as it goes but the fact of the matter is, Wis. Stat. § 809.51 also distinguishes between supervisory and original jurisdiction, presenting as it does a choice to prospective petitioners as to whether they will proceed in accordance with one or the other form of authority.

But the distinction is not so much germane to Huebsch, where the majority conjured a petition for an original action from a petition for a supervisory writ, and Huebsch doesn't get to § 809.51 except by way of § 809.71, which is the Supreme Court rule exclusive to its supervisory jurisdiction. While § 809.51 presents both options, the presence of two separate statutory provisions, § 809.71 and § 809.70, reinforces the contention that "supervisory/original jurisdiction" makes as much sense as "disorderly/theft" or "sexual assault of a/moveable property."***

On the other hand, the Supreme Court helpfully disabuses the absurdist notion that the only court referred to in Wis. Stat. § 809.51 is the court of appeals, a notion published in apparent seriousness on, of all places, the front page of the Marquette University Law School's faculty blog.

* And which the Supreme Court dismissed on June 14 — unanimously.

** Publici juris simply means "public right." The public also retains a couple of more fundamental rights: the right to draft constitutions and enact rules that define and delineate the powers of the courts and the right to not draft constitutions and not enact rules which authorize courts to combine those powers into new, judicially manufactured ones.

*** Notwithstanding Lt. Gov. Rebecca Kleefisch's table/marriages.

Rappin' with Dad29, foil-hatted conspiracist

In which local wing-nut Dad29 ("old, nasty") joins the conspiracists.

Take it away, Dad29:

A month or so ago it was clear that [Dane County Circuit Judge Maryann] Sumi's kangaroo-ing was designed to delay a decision. That delay would result in [Supreme Court of Wisconsin] review of the case after Prosser was out, i.e., after August 1st. Of course, Kloppenburg had to win. Oh, well.

The backup plan is now in play. Kloppy requests a recount, which will take a long time.[*] As of 8/1, SCOWI becomes a 3-3 tie (at least in theory, but [Chief Justice Shirley] Abrahamson has counted her chickens very carefully). Ergo, a Madison Appeals court ruling will stand. Kloppy's just roadkill here. It's the vacancy on SCOWI that counts.

It was difficult to resist, on a lazy Sunday:

What Madison appeals court ruling?

shut up the tin foil crowd [Quoting Dad's mentor Esenberg.]

Hear that Dad?

Dad29:

What Madison appeals court ruling?

We note that SCOWI has not accepted any of the AG's or Administration's petitions on the matter at hand yet. You expect that SCOWI will take the case directly, illyt? On what basis?

Your humble scribe:

We note that SCOWI has not accepted any of the AG's or Administration's petitions on the matter at hand yet.

Right, but there is no appeals court "ruling." There was the [Department of Justice]'s District IV appeal, which the latter kicked upstairs, and the DoJ's ability to effectively represent its plaintiff secretary of state appears to be irretrievably broken. So that thing is dead in the water (maybe Cathy Stepp could fish it out). And there is [Secretary of Administration] Mike Huebsch's petition for a supervisory writ, also filed by the DoJ, a terribly unconvincing document, I'm sorry to tell you.

You expect that SCOWI will take the case directly, illyt? On what basis?

I don't expect them to, unless they want to rule the Open Meetings Law unconstitutional, at least insofar as it applies to the express prohibition on the sufficiency of the Fitzes' 1hr and 57m meeting notice (why wasn't Jeff Fitz in his office, by the way, when the witching hour was imminent? That's probably the biggest FUBAR in this entire escapade). But I would like to see the court declare the OML unconstitutional, for sheer entertainment at least. Imagine all of those restraintful, conservative jurisprudes "unmooring" themselves from the plain text and relying instead on Cromwell-era common law. What fun.

Incidentally, Daddy-O, you and your wing-right pals really need to stop criticizing Judge Sumi with your goofball ad hominem japes, as they embarrass nobody but you all (but of course you can keep it up for the pure entertainment value as well). What it tells people who have read the law (beyond Prof. Rick's "publication that is sent to schoolchildren," that is) is that you've got nothing *but* ad hominem fallacies. I've yet to see a convincing substantive criticism of Sumi's dispositions and I think it's highly likely the Supreme Court can't come up with one either.

By the way, Dad, have you had a gander at Judge Sumi's record on appeal? Here, let me show you it.

Dad29, back for more:

I've yet to see a convincing substantive criticism of Sumi's dispositions and I think it's highly likely the Supreme Court can't come up with one either.

I have, from Prof. Rick, who actually practiced law for quite some time — successfully.

As to Sumi: she gets the respect that she earns. No one has put forth a convincing argument that declaring a law un-Constitutional BEFORE IT IS LAW is anything other than kangaroo-ism, plain.

Your humble scribe:

I have, from Prof. Rick ...

Well, good for you guys. You might find it interesting that Prof. Rick's watershed, controlling precedent, Goodland v. Zimmerman [Anno Domini 1943], barely makes an appearance in the Huebsch petition for a supervisory writ. Instead, the petition focuses primarily on La Follette v. Stitt.

You want to know why? Because the facts and law at issue in Ozanne v. Fitzgerald precisely describe that situation which Stitt repeatedly insists it does not cover. Go read Stitt (it's online), and see how quickly you lose count of the 'excepts' and the 'unlesses.' In other words, Stitt is unavailing, and JBVH knows it, as is Lynch v. Conta and as is MJS v. Wis. DoA, but we (and District IV) knew that already.

Grandes problemos, Daddy-O. You'll see (maybe). By the way this business is all constitutional law and statutory construction, which you don't need 20 years experience taking depositions to evaluate. And there's plenty of other pretty sharp cookies among the Marquette law faculty who haven't practiced a whole hell of a lot of law.

No one has put forth a convincing argument that declaring a law un-Constitutional BEFORE IT IS LAW is anything other than kangaroo-ism, plain.

Except Judge Sumi hasn't done that. What do you think the briefing schedule is for? Besides, the convincing argument is sitting up right there among the black letter constitutional and statutory provisions. Have a look-see, Pops.

More Père le vingt-neuf:

But then, no one with half a gourd would have believed someone could issue a TRO [temporary injunction] against a law which is not actually a law, either.

And some law:

Wis. Stat. § Dad(29): [N]o one with half a gourd would have believed someone could issue a TRO against a law which is not actually a law, either.

Wis. Stat. § 19.97(2): [T]he district attorney may commence an action ... to obtain such other legal or equitable relief, including but not limited to mandamus, injunction or declaratory judgment ...

Why, it's unthinkable!

You're funny Dad.

Finis.

* It won't take a long time. Outside of MKE Co., it's a can of corn. Once the precincts get set up, the recounting will go very quickly.

It's not like they're counting one big bag of 1.5M ballots. They're counting several hundred much smaller quantities and tallying 'em up

Hamline law professor lectures Kloppenburg

In making this wild and baseless claim:

An expert in legal politics says AAG JoAnne Kloppenburg may have launched a recount of votes from the April 5 State Supreme Court race to ultimately sway the outcome of a legal challenge to Gov. Scott Walker's union reform efforts. David A. Schultz, a law professor at Hamline University in Minnesota, said Kloppenburg's recount in her contest against Justice David Prosser could be an attempt to stall matters until crucial issues come before the court. The next justice is scheduled to be sworn in August 1, but a protracted legal dispute could delay the winner from taking office.

Naturally the wing-nut elements, led as usual by Charlie Sykes, are citing to this thoroughly unsupported suggestion approvingly.

Because ridiculous conspiracy theories are their stock in trade and their foolishness knows no physical or psychological boundaries.

Only one very large problem: In 2001 Justice Prosser was elected to a 10-year term, which doesn't expire until July 31, 2011. In other words, Justice Prosser already "took office" ten years ago. Apparently the MN "expert in legal politics" is not aware Justice Prosser is an incumbent, a sitting member of the court that has been working and hearing oral arguments throughout the month of April. There is one petition before the court related to Gov. Scott Walker's budget bill shenanigans, filed on April 7, asking the court to invalidate the temporary restraining order issued by Judge Maryann Sumi.*

There is no law or rule that I'm aware of preventing the court from accepting the petition this afternoon, together with Justice Prosser's participation.** Yet here is a professor of law suggesting that an assistant attorney general is deliberately stalling the process of litigation through the appellate courts. It's a serious charge, made without a scintilla of evidence, and is especially irresponsible issuing from a professor of law. On the other hand, it is Hamline University.

That's Mike Gableman's alma mater.

* There is/was another that was kicked upstairs by the District IV Court of Appeals, but it was filed on behalf of Secretary of State Doug La Follette by the Department of Justice, whose ability to represent the interests of the named plaintiff has been questioned to the point of ineffective assistance of counsel thanks to the DoJ's performance in the aforementioned Dane County circuit court.

** Then-State assemblyman Prosser in 1983 filed an amicus brief in one of the cases that would play a defining role*** in the Supreme Court's review of Judge Sumi's disposition, but the brief is not directly related to the central question of whether the judicial branch may undertake to enforce constitutional and statutory provisions against the internal [sic] operations of the legislative branch.

Now that might be an interesting tidbit for a law professor to point out, but in fact it was this blog that did, nearly a month ago. We've since navigated the microfiche machine to obtain one of about three extant copies of the brief in the entire State of Wisconsin. So now you know just where to come for all yer law perfessin' requirements.

*** It's also manifestly unavailing to the Fitz Van Walker cause, IMO.

Beware this Milwaukee WISN-12 teevee report

Red herring alert

Reporter: In Kratz's case, [Kenosha defense lawyer Terry] Rose says remember, the domestic violence victim was a witness to the original crime. The client was the State of Wisconsin.

It doesn't matter.

The Wisconsin rules of professional conduct provision SCR 20:08.4(i), which even Kratz acknowledged to the OLR may be in play, refers to harassment "in connection with the lawyer's professional activities."

It is not limited to lawyer/client relations. Indeed, it would be absurd if it was so limited, and could never find application to district attorneys, DoJ lawyers, or any others whose clients were the State.

Why didn't Colleen Henry get this assignment? She's a lawyer.

Megyn Kelly's alarmed grimace made permanent

Dems say nay to investigation of Bush DoJ's prosecutorial discretion

Wisconsin district attorneys in the news

In this ad from Julie Lassa, the Wisconsin legislator who is seeking the Congressional seat soon to be vacated by the venerable David Obey, Lassa enlists Ashland County assistant district attorney Dan Goglin to offer his views of Sean Duffy, former Ashland County district attorney and MTV reality star and Lassa's Republican opponent:

ADA Dan Goglin: Sean holds himself out as being a successful prosecutor . . . We did not see him often. His campaign was taking him away from the job all the time. Witnesses and victims would have to wait in the hallway for him to come to work. The quality of services that were provided to the citizens of this county suffered.

"Sean Duffy was a no show," a voiceover concludes.

Watch it here (h/t Zach Dubbya).

Duffy was endorsed by another peripatetic politician, Sarah Palin.

Duffy was appointed district attorney of Ashland County by former Republican governor Scott McCallum. Duffy's predecessor was the notorious Michael Gableman, who McCallum appointed a judge in Burnett County. Three justices of the Wisconsin Supreme Court contend that Gableman still has an open ethics case pending against him containing allegations that he willfully lied in his own campaign teevee ad when he was running for the Supreme Court in 2008.

Other Wisconsin district attorneys in the news here and here.*

* From the Department of Material That Writes Itself, that DoJ convention's sessions were held in the Palm Garden Ballroom.

Gonzo DoJ a real class act

The report describes an alleged "sexual relationship" between a career prosecutor and a U.S. attorney, who were not named. Margaret M. Chiara, the former U.S. attorney in Grand Rapids, Mich., said in an interview with The [LA] Times that she now believed she was fired because of the erroneous belief that she was having a relationship with career prosecutor Leslie Hagen.

"I could not begin to understand how I found myself sharing the misfortune of my former colleagues," Chiara said of the eight other U.S. attorneys who were fired. "Now I understand."

Justice officials said after her firing that Chiara was let go because of mismanagement and because she had caused morale in her office to sink. Chiara said Monday she believed those concerns were raised by the same people who spread rumors about her and Hagen.

"I guess now I am persuaded with deep regret that this is what was the basis," she added. "There is nothing else."

What is it about J. Edgar Hoover that makes you want to serve him?

You are now entering the no spin zone:

Gonzales' lawyer, George J. Terwilliger III, said Monday that the report was a measure of vindication for the former attorney general.

Right! That Alberto Gonzales devolved the responsibility for hiring and firing U.S. attorneys to an inexperienced partisan hack/religious zealot called Monica Goodling is his vindication? Not quite.

DoJ Bushies sentenced to "negative publicity"

Case closed, sez General Mukasey:

"That does not mean, as some people have suggested, that those officials who were found by the joint reports to have committed misconduct have suffered no consequences," Mr. Mukasey said. “Far from it. The officials most directly implicated in the misconduct left the Department to the accompaniment of substantial negative publicity.

"Their misconduct has now been laid bare by the Justice Department for all to see," he continued. "As a general matter in such cases, where disciplinary referrals are appropriate, they are made. To put it in concrete terms, I doubt that anyone in this room would want to trade places with any of those people."

Spare me.

Has Monica Goodling made partner at Gibson, Dunn & Crutcher yet?

Because D. Kyle Sampson seems to be doing just fine.

Wisconsin: Ozanne v. Fitzgerald — A preview

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

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

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

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

Rotating

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

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

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

Hockey sock

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

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

Harrumph

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

"Correct. . . . Absolutely correct."

Oh dearie, dearie me.

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

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

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

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

Calling all grammarians: Help wanted

Should the Court, however, determine that it is within this Court's discretion to appoint a three-judge panel, and instruct that panel to accept the redistricting challenges set forth in the (now-withdrawn) Petition or to defer in light of the pending federal action. — Wisconsin Dept. of Justice, Response etc.*

What do you call that, a dangling antecedent?

Maybe I need a grammarian and a logician. Or maybe the DoJ does.

* Another panel, the federal court in question, noted that the same author "skirt[ed] the line of being intemperate and unduly combative."

Which is nevertheless preferable to being incomprehensible, imho.