Fitzgeralds try foisting civics lesson on Wisconsin

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

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

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

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

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

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

What up bruh

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

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

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

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

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

Hench-pariahs

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

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

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

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

* Thrice if you consider the recent decount attempt.

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

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

Famous last words and a bipartisan laughing stock

"Waukesha County could not save Prosser."

That would be yours truly, tapping away one recent Wednesday morning. How morbidly wrong your scribe now appears to be.

I was correct at the time, however, around the previous midnight hour when overwhelmingly Republican Waukesha County finally reported 100% [sic] of its election returns (WaukCo. had been sitting on the AP's results page at 25% for a couple of nailbiting hours).

Armed with an MS Excel file of February's primary results* and comparing in realtime how Assistant Attorney General JoAnne Kloppenburg was improving her general election score dramatically in county after Wisconsin county (every one of which — contra Scott Walker's ludicrous averments, made now even more so in the wake of a rogue election official's enormous bungle — was not Dane County) it was rapidly becoming apparent that the election would hinge on the ferocity of Kloppenburg's clobbering in Waukesha Co. (for the per se clobbering was never in doubt). Sure enough as Tuesday evening turned to Wednesday morning it had grown clear enough that Prosser's Wauk-klopbering was not severe enough to carry the State.

Forfeit a couple Hun

Kloppenburg had previously accomplished her initially required milestone event, reversing Milwaukee County from 54-46 Prosser to roughly 55-45 K-Burg, the 100% [sic] returns from Waukesha County only put Prosser ahead by a couple of hundred votes and based on what was left and Kloppenburg's rising fortunes throughout the rest of the State's most populous counties,** Election Central here reckoned Justice Prosser would quickly forfeit those couple hun, and remain behind the point of no returns, and start packing his bags for July 31.

Which is pretty much exactly what happened until Kathy Nickolaus, a WaukCo. Republican Party True Believer with an apparently lengthy and documented history of extraordinary incompetence, suddenly "discovered" circa 14K ballots from Brookfield yesterday afternoon.

Now it's gotten so bad somebody's had to retain Ben Ginsberg, Esq., of Washington, DC (favorite place in the whole wide world of the "Tea Party" crowd, courted early and often by Justice Prosser, who today happens to be the somebody that's retained Mr. Ginsberg).

Separation of utterances

You may remember one Brian Nemoir, Justice David Prosser's campaign manager, who uttered the now-infamous December 8, 2010 statement of compliance pledging Prosser's fealty to the recently-elected GOP legislative and executive branches of government.

In my view Prosser should have loudly and forcefully jettisoned Nemoir on December 9, 2010, perhaps by figuratively having him rolled over by one of Scott Walker's old federal stimulus-funded, Canadian-made Milwaukee County Transit System motorcoaches.

Instead, Prosser distanced himself over time from the pledge to varying degrees, for the longest while saying little more than, 'Those aren't the words I would have used,' which struck me as particularly unsatisfying because if there's anybody who knows how many different ways there are to say the exact same thing, it's a lawyer.

The Prosser campaign's December pledge of fealty to the Fitz Van Walker regime remained firmly affixed to the candidate's hide right up until two days before the election, when Journal Communications, Inc. ran it all by us one more time in the course of its incoherent endorsement of the politically conservative Supreme Court justice.

Waukesha ha ha

"Waukesha County" is a punchline among liberals — its mere mention invokes the equivalent velocity of eye-rolling as, for example, does "Charlie Sykes" — and even candidate Kloppenburg made a Waukesha County crack at an appearance in Shorewood (an administrative suburb of Milwaukee but in fact an integral part of Milwaukee).

Funny thing is, it's even a punchline among conservative Republicans.

During one especially candid conversation with a Dane County Republican (that would be yer proverbial hen's tooth) official from a couple of weeks ago (I don't have the link handy; I'll dig it up and post it later) Nemoir's mal-spelled renunciation of the bedrock American constitutional doctrine of separation of powers presented itself.

Quipped Justice Prosser: 'Well I guess there's just a little too much Waukesha County in Brian Nemoir.' Yep, we are knowing the feeling.

* Why the expert wag professors and lawyers insist on comparing Tuesday's results with last November's — or those of the 2008 presidential election, fer the luvva gawd — is beyond your humble correspondent's ken. The political landscape has been altered so substantively by Fitz Van Walker's sundry lawless antics that those prior contests are all but meaningless to the present one. The most directly relevant and of most recent and timely vintage of temperature-taking of the public's attitude toward the Wisconsin Supreme Court general election is, obviously, the Wis. S. Ct. primary election. Or it could be also that the local press has roughly only two of each expert wag professor and lawyer in its desk Rolodex.

More likely the latter, as The Truth is Out Here, and not necessarily anywhere within Journal Communications, Inc. County and environs.

** And a touch of intuition, the poli scientist's ancient Chinese secret.

eta: Jay Bullock debunks once again the Opéra Bouffe that is WPRI.

Wisconsin letter of the day

From Lester Pines, counsel for State Sen. Mark Miller, to the clerk of the Wisconsin Supreme Court, blasting Deputy Attorney General Kevin St. John for coming "perilously close" to violating SCR 20:8.2* (.pdf; 3 pgs.).

Meanwhile the Supreme Court's docket still shows oral argument scheduled for Monday, June 6, related to Scott Walker's building maintenance supervisor Mike Huebsch's petition for a supervisory writ, a petition grounded in challenging a temporary injunction that doesn't even exist any more (it was superseded by Sumi's final judgment).

Fitz Van Walker's multi-ring circus gets more ridiculous every day.

It's gotten so bad that our old friend perfesser to the wing-nuts Rick Esenberg, at the Marquette law school's faculty blog refers to "[t]he Zimmerman and Goodland cases" in support of his allegedly profound doctrinal claims, despite Goodland v. Zimmerman being one case.**

I guess when all you have is hand waving, inventing precedent works too.

And Journal Communications, Inc. loves the guy, of course.

It's comical.

* Supreme Court Rule 20:8.2: "A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge ... "

** Goodland v. Zimmerman is a 1943 decision of the Wisconsin Supreme Court. If the Open Meetings Law didn't contain eleventeen provisions expressly superseding the holding in Goodland, this case would be a slam dunk, and Judge Sumi would have ruled opposite to what she has done. What I find amusing is that so-called judicial conservatives (e.g., Rick Esenberg) now deriding Judge Sumi for following to the letter what the legislature has laid down instead of the holding of seven "black robed elites" in Goodland will just as facilely in different circumstances deride similarly situated judges for following judge-made doctrine instead of the clear directives of the democratically elected legislature. There are no judicial "principles" to so-called judicial conservatism. It is purely a matter of what is convenient under which circumstances that are most suitable for the furtherance of conservative political policy, in this case, the gutting of the collective bargaining rights of public employees.

Other examples, from the work of Justice Prosser, may be found here.

Conversely, Judge Sumi's reasoning is an example of what conservative jurisprudence is supposed to be. Which is why, if it does indeed come to pass that the "conservatives" on the Wisconsin Supreme Court do get around to reversing Judge Sumi, as is desperately pleaded for by the Fitz Van Walker regime and its disciples, that court's own reasoning cannot be anything other than tortured and circuitous by comparison to Judge Sumi's. And the attendant celebration by the disciples will be even sillier.

MJS blames Obama for their boy's rail #fail

Governor-elect Walker and his team have told the company they want the train jobs to stay even if there is no train.

Journal Communications, Inc., which endorsed Scott Walker for governor of Wisconsin, is upset because the federal government passed over the State for grants to upgrade the Amtrak line between Milwaukee and Chicago. Walker, it may be recalled,* turned down $800M worth of new construction for a rail link from Milwaukee to Madison. His sharp negotiation skillz apparently led him to believe he could still have the Amtrak upgrade money, but it was not to be.

The money went to the feds' "strongest partners," the "reliable people." And those ain't among the Fitz Van Walker administration.

The JRN mandarins knew Scott Walker was spurning the MKE-MAD money when they blessed his candidacy. Why did it not further know that Scott Walker is about the worst negotiator in Christendom?

Walker is out of feet to shoot himself in. When will JRN admit it?

Face the facts. Walker blew it.

* Indeed, Walker will be eligible to be recalled from office in January.

To the self-styled Wisconsin anarchists of the JFC

Last night a meeting of the Wisconsin legislature's Joint Finance Committee was repeatedly and prolongedly disrupted by so-called "protesters." Naturally, the wing-nut media, which dominates the Milwaukee area, at least, are having a field day with your obstreperous behavior this morning. Remember this: a lot of people have put in a considerable amount of time and effort in opposition to the Fitz Van Walker regime's lawlessness and its dedicated attempts to curtail basic civil rights in this State. You insult those people, and belittle that effort.

Most importantly to this correspondent, some highly principled Democratic State legislators and their attorneys and supporters are challenging the procedure by which the Fitz Van Walker regime attempted to enact the provisions of law at the very core of the ongoing controversies in Wisconsin: the regime's stated goal of stripping the rights of public employees to collectively bargain and negotiate their employment contracts. Thus you make us appear as hypocrites by on the one hand challenging the regime's adherence to procedure and on the other hand making a complete and utter mockery of procedure.

In other words, you're not only not helping, you're aggressively hindering.

So please stop it. Now.

Judge Sumi rules, in two senses of the word

Decides she's heard enough

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

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

Exactly right.

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

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

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

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

Walker's big gummint democracy by the numbers

So lemme get this straight.

Milwaukee residents voted nearly 70% to enact an ordinance expanding sick leave provisions for employees, which survived conservative Republican legal challenges all the way to the State Supreme Court, and now Wisconsin Governor Scott Walker, who swept into office on a Tea Partyish platform and believes government is too powerful, is exercising that power to void the plebiscite.

Our Fitz Van Walker regime really does detest workers, does it not.

Relative to the overhelmingness of a 70% majority — almost unheard of in American politics — Scott Walker won the executive mansion with 52% of the vote last November. More recently incumbent Justice David Prosser achieved a 00.48% (50.24% to 49.76%) margin over challenger JoAnne Kloppenburg, who posted substantial gains throughout the State in counties that went for Walker just months ago and for Prosser in the February Supreme Court primary.

This, or so we are told by certain representatives of Journal Communications, Inc. (JRN), the State's largest media conglomerate, was an enormous validation of Walker's policies. Incidentally Steven J. Smith, JRN's CEO, is a board member of the Metropolitan Milwaukee Association of Commerce (MMAC), which filed suit* against the sick leave ordinance. The Milwaukee Journal-Sentinel, JRN's print organ, editorialized against the ordinance on several occasions without identifying this — you would think — pertinent fact.

Justice Prosser, sitting on an evenly divided court, sided with arch conservative Justices Roggensack and Gableman last October (Justice Ziegler — who is figuratively joined at the hips with Roggensack and Gableman — to the undoubted chagrin of the MMAC, sat it out) in seeking to continue a circuit court's injunction** against the ordinance, an injunction the District I Court of Appeals vacated.

In sum, a conservative Republican governor and Supreme Court justice, both installed in Madison on the slimmest of majorities, would sweep away the clear will of the people of Milwaukee with the aid of Journal Communications, Inc.'s various ink-stained*** wretches and radio shouters. And they say this is what democracy looks like.

Now it may be that the sick leave ordinance is a bad idea, that it penalizes employers, or that the vagaries of its text leave open the benefits to abuse by fallible human nature — what benefits aren't — but the numbers are clear, and they rank GOP hypocrisy near the top.

More from Paul Secunda, a professor of employment law at Marquette University, who explains the constitutional implications of Walker's latest decree to a non-Journal Communications, Inc. media outlet.

* JRN's Charlie Sykes Rule for Wis. Radicals: "Litigate everything."

** Yes, you read that correctly. There's been a lot of weeping and bellyaching from conservative Republicans pursuant to a similar situation arising from a Madison court, where a FitzWalker collective bargaining agreement bill is under a writ of injunction, but no such GOP tear was shed when the sick leave ordinance was so enjoined.

That is, those Republicans respect the rule of law only when it's convenient, which is to my mind the most resonant takeaway here.

*** Or E-ink-stained wretches, I guess they would be nowadays.

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.

What, no bonus for Mike "Peppercorn" Gableman?

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

You have got to be effing kidding me:

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

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

Some defense.

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

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

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

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

Scott Walker's vote suppression bill delayed

For a few hours at least

Good story by Patrick Marley on the WISGOP's latest antic:

Sen. Joe Leibham (R-Sheboygan), author of the bill, said many people "have truly lost their confidence in the election system" because of reports of voter fraud.

And do you know who those "many people" are?

They are elected Republicans and their noisiest enablers among the local Journal Communications, Inc. marquee personalities who push those ginned-up "reports" of voter fraud. Because look here:

The Wisconsin Department of Justice and Milwaukee County district attorney's office have prosecuted 20 cases of voter fraud from the November 2008 election. None involves people voting in someone else's name at the polls.

None. Zero. Nada. Niente. They are mostly ineligible electors (e.g., persons with an unfulfilled felony sentence) attempting to vote. And I bet you every one of them already had a photo ID in their wallet.

It's worth a reminder that Wisconsin Supreme Court Justice Patience Roggensack, who may be the most conservative judge in the State, has argued that voting is a First Amendment right; that is, it is a fundamental right of Americans that any legislation attempting to curtail without sufficient reason should be subject to the strictest of judicial scrutiny.* In other words, did Walker and Scott Fitzgerald and their pals not contemplate how many times they would be (successfully) sued pursuant to their radical legislative agenda?

Fitzgerald may be unconcerned because when hundreds of thousands of protesters — many of whom literally camped inside the building for weeks — descend on the Capitol and cause an alleged $112K worth of scuffed limestone (including an unspecified number of scuffs caused by people in wheelchairs), conservative Republicans go apeshit. But when Fitz personally spends one quarter of that on three Republican-for-hire attorneys for a couple of days' work, nobody bats an eyelash.

Meanwhile the people of Wisconsin's investigation of Scott Walker, Scott Fitzgerald, and indeed the entire WISGOP legislative caucus for votee fraud committed in November, 2010 continues unabated.

* Meaning the legal burden would be on the WISGOPers to prove they were compelled to make voting more difficult based on a record that includes the zero instances of related "fraud" depicted above in a high-interest election that featured candidates for everything from Waukesha County clerk to president of the United States. So good luck to 'em all and may God bless Fitz Van Walker on that account.

Wisconsin's GOP counties love Kloppenburg

Because #wiunion GTFOTV State-wide, is why

Contrary to Governor Scott K. Walker's absurdist claim that 'Wisconsin is divided between Madison and the rest of the State,'* Assistant Attorney General JoAnne Kloppenburg posted some of her biggest advances in Republican strongholds during the Supreme Court election on Tuesday. Walker also denies the election had anything to do with his disastrous legislative projects, which have attracted more civil lawsuits than a Chevrolet Corvair at a McDonald's drive-thru.

Meanwhile others among the more imaginative of the nut-right are attempting to forward the claim that incumbent Supreme Court Justice David Prosser was the victim of poor voter turnout in Republican-dominated counties. (They're also making utterly baseless charges of "voter fraud,"** but the Brawler can handle those.)

Then there's a bizarre item in the lefty Capital Times of all places, the less said about the better. T'aint no big deal, the piece's sources therewith assert, that the Fitz Van Walker administration just handed the Supreme Court to an army of motivated punks, thugs, slobs, and hippies,*** a spectacular political failure for the ages.

Those speluncean zanies

The only explanation I can come up with is that a feature expedition article for Spelunker's Quarterly made its way over to the Capital Times, in which local GOP mandarin Mark Jefferson spun so hard and drilled so far into Earth's crust he ran right into UW professor Howard Schweber down amongst the deepest strata of psychological denial.

It's funny because not too long ago, the local conservative intelligentsia, Journal Communications, Inc. products Charlie Sykes, Patrick McIlheran, and Rick Esenberg, were telling anybody within fearshot that incumbent Justice David Prosser would cake-walk back onto his politically conservative high chair, and so thoroughly convincing was his 55-point majority in the winter primary.

It might be recalled that on February 15, Scott Walker was just getting underway with his various assaults on the Wisconsin constitution and on the duly enacted laws of the State. In fact this space predicted that liberal success in the Supreme Court would be contingent on the degree Walker and his fellow desperadoes were inclined to test the patience of the good people of the Badger State.

Turns out them desperadoes was pretty darned inclined.

[Search this blog: CAPITOL KAOS]

The February 15, 2011 primary

Prosser won the February 15 primary against three opponents: Kloppenburg, Assistant State Public Defender Marla Stephens, and Madison attorney Joel Winnig. In terms of political disposition, I don't believe there was anything to choose among the three candidates.

(This space had also recommended JoAnne Kloppenburg as the most politically viable to go against Prosser, as the wing-nut sleaze machine would have made mince meat out of Atty. Stephens, who has devoted her career to enforcing the Bill of Rights, and that is an unpardonable offense to conservatives, as we well learned in 2008.)

Indeed, Atty. Stephens almost immediately threw her wholehearted support behind Atty. Kloppenburg. As far as I know Atty. Winnig retreated to the shadows and endorsed no candidate. Nevertheless, it seems to me sound reasoning to treat the trio's primary vote in the aggregate. And thus did Justice Prosser win the State, 55-45.

And so did Kloppenburg and her energetic supporters have their work set to that gap-closing, and they did indeed succeed in clawing back Prosser's margin. How they did it is as plain as the Arabic numerals.

Gotcher numbers right cheer

Kloppenburg pulled off the biggest flip in Milwaukee Co., which went 54-46 to Prosser in the primary — about the same as his Statewide figures — to 57-43 in favor of Kloppenburg. She couldn't have won the election without turning that margin in particular. But on account of a disappointing turnout in Milwaukee and the slender overall margin of Kloppenburg's victory, she clearly couldn't have won on that accomplishment alone, and that is where the predominantly Republican territories throughout the State came to her rescue.

Since the February primary, Kloppenburg gained in 22 of the State's 24 largest counties, only dropping a couple points in Marathon Co., which went from 51-49 Prosser to 54-46, and Sheboygan Co., where Prosser profited by one, closing out Tuesday with a 63-37 romp.

More impressively, Kloppenburg added eight, five, and nine points respectively amongst the State's three most notorious**** Republican county-enclave-bunkers: Waukesha (3),***** Washington (7), and Ozaukee (14). In addition the AAG picked up six points in Racine Co. (5), ten in Jefferson Co. (18), 11 in Fond Du Lac Co. (16), and a startling 14 points in Winnebago Co. (8), where Kloppenburg choppenburg'd Prosser's margin from 66-34 in February to 52-48.

Kloppenburg Republicans FTW: WMC, AFP, WTF, LOL

Other of the more populous Justice Prosser-won counties where JoAnne Kloppenburg produced significant headway were: Dodge (19), 11 points.; Outagamie (6), 11 points.; Kenosha (12), nine points; Walworth (17), four points; and Wood (22), three points.

That is, all over the State, not just in Madison, and especially in counties otherwise heavily dominated by Republican voters.

So anybody who you catch peddling Republican Governor Scott Walker's terrified apologetica is handing you a phony bill of goods which must be rejected outright. When that guy tweets "Mmm. Burgers" or "O hai Scotty here look a sandwich kthxbai," the implied relaxation is a façade, 'cause there's a hellhound on your trail.

* "The 'backlash' is largely a Dane County phenomenon," rejoins Marquette professor of law and local right-wing media celebrity Rick Esenberg — who apparently never wearies of being almost irretrievably incorrect — and claims, without a scintilla of evidence, that "the Kloppenburg margin is driven almost entirely by votes in a county [Dane] that had become an ideological fever swamp ... "

Sidesplitting stuff, and just so, so wrong. And the guy has been on the radio and the teevee and the op-ed pages and the internets trafficking this and related nonsense nearly continuously lately.

It shocks the conscience, truly.

** Issuing from — who else — the medium wave jackanapes C. Sykes in tandem with the ludicrous Wall Street Journal pundit J. Fund.

*** Those aren't my epithets, those are actual conservative Republican epithets, perhaps most famously "slobs," which was coined by Assistant Majority Senate Leader Glenn Grothman, the Louie Gohmert of Wisconsin politics. However the author uses them here (just in case it wasn't obvious) as terms of endearment.

**** The three were the only three counties not swept by Chief Justice Shirley Abrahamson in the last State Supreme Court election of April, 2009, and proving once and for all, as the wing-nut never tires of not telling you, that Wisconsin absolutely will not abide a liberal judge.

***** The figures in parentheses represent the rank, by all 72 Wisconsin counties, in number of total votes cast on Tues., April 5.

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.

Closing statement on Fitz Van Walker arrogance

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

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

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

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

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

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

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

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

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

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

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

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

Obviously your humble correspondent concurs.

eta — From the Milwaukee Journal-Sentinel:

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

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

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

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

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

Fitzgerald in turn acted on the basis of that advice.

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

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

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

*** Who had done nothing whatsoever unlawful.

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

Associated Press Wisconsin highlights

Via the SF Chronicle:

Wis. Governor Scott Walker and GOP leaders have launched a push to ram several years' worth of conservative agenda items through the Legislature this spring before recall elections threaten to end the party's control of State government.

Six of eight incumbent Republican Senators face recall elections tentatively set for July. Winning three would give Dems the Senate.

That likelihood is strong.

Republicans plan to legalize concealed weapons, deregulate the telephone industry, require voters to show photo ID, expand school vouchers and undo an early release for prisoners.

The latter initiative probably won't encounter much public resistance, even though there are substantial cost savings to placing low-risk defendants in community monitoring programs as opposed to prisons. Which goes to show that the Fitz Van Walker administration isn't really as committed to fiscal discipline as it claims to be.

The GOP may also act again on its controversial plan stripping public employee unions of their collective bargaining rights. An earlier version, which led to massive demonstrations at the Capitol, has been left in limbo by legal challenges.

Note the "may." Personally I think the thing is dead in the water, unless the Supreme Court decides to declare Wisconsin's Open Meetings Law unconstitutional, which would be a real hoot.

Obviously the Fitzwalkerstanians don't have the votes, otherwise they would have properly noticed and passed it months ago. If they try again, we're entering nicer protest weather than it was in February.

eta: Much more from Publius No. 9.

Wis. S. Ct.: Huebsch v. Cir. Ct. for Dane Co.

Not sure how I missed this:

05/04/11 — ORDERED that the respondent, Circuit Court for Dane County [a.k.a. Judge Maryann Sumi], et al, shall each file a response to the petition for supervisory writ and for immediate temporary relief, with a supplementary memorandum, on the issue of whether this court should accept jurisdiction over the writ and on the merits of the substantive issues[*] raised in the writ, on or before 5/18/2011.

Then oral argument on June 6. Looks like Charlie Sykes & Friends' Kloppenburg/union thugz conspiracy theory was/is real valid huh.

So the Supreme Court hasn't taken jurisdiction of the case yet, but it wants to hear why it should. Noteworthy too because both Justices Prosser and Gableman held last August that the Supreme Court could issue injunctions against parties to a case even before the court had decided to take jurisdiction of the case, but the Supreme Court is not exercising that recently discovered constitutional authority in the present instance. Something told me that that August opinion was kind of an important thing that nobody else seems to have noticed.

Quite the development though. Was this in the paper?**

* a.k.a. Fitz Van Walker's big dilemmas.

** Evidently it was. The hell wasn't this above the fold? Yr hmbl corresp. apologizes for leaving wscca.wicourts alone for a few days.

This is a huge case in constitutional law.

eta: Judge Sumi is in more than capable hands.

The "chaos" is all to the Wisconsin GOP's account

As the Tomah Journal points out:

Wisconsin used to have one of the nation’s most efficient, honest and voter-friendly election systems in the country. No more.

Yet Journal Communications, Inc.'s Milwaukee teevee station, TMJ-4, is still running its "CAPITOL CHAOS" banner over election-related stories, attributing the "chaos" to opponents of the Fitz Van Walker regime.

Yes, they really do think you're that stupid.

I guess you would be that stupid if you got all your news from them.

Wisconsin GOP — An instructive juxtaposition

Reports Nate Silver: Republican Governors are Leaving Voters Behind.

Meantime, notes Keesha Gaskins, senior counsel at the Brennan Center for Justice, the WISGOP is busy repealing language in the State statutes that recognizes their "obligation imposed by their constitutional oath of office to represent the interests of the citizens who elected them and all of the other citizens of the state of Wisconsin." Emphasis added.

The latter repeal is apparently in defense of the WISGOP's ludicrously partisan redistricting plan, which those soon-to-be-repealed "other citizens" had but a few days to examine, while the WISGOP's battalion of silk-stockinged attorneys labored over the plan for months, and which plan takes effect for an entire decade. I don't understand how anyone can not be appalled by the Fitz Van Walker regime's brazen arrogance.

Wisconsin Senator Dave Hansen: He lives!

Hansen "survives," sez Politico dot com. Gimme a break.

survive, v., continue to live in spite of an accident or ordeal.

There was an accident, alright, in that the WISGOP's only other relatively viable candidate couldn't scrounge up a measly 400 signatures to get on the ballot. And there was an ordeal, alright, in that the candidate the WISGOP did field was rather unique, except it's the WISGOP that's enduring the ordeal of being represented by its candidates' uniqueness.

Seriously, Politico, Dave Hansen won nearly 70% of the vote in a Senate district comprising three Assembly districts, each of which went to Republicans in the "Tea Party" of November 2010. In fact one of those Assembly districts belongs to John Nygren, the fellow who couldn't raise 400 signatures (or 399, which he could have if he signed his own name).

David VanderLeest, the unique candidate that the WISGOP put against Hansen, received 5,000 fewer votes than the number of signatures that the WISGOP collected to force last night's election in the first place.

That seems pretty unique too. What happened to the other 5,000?

Gone back to Utah?

"I don't think it tells us too much about the big issues in the recalls — collective bargaining and senators leaving the State," said St. Norbert College political scientist David G. Wegge.

To the contrary, it says quite a lot, considering yesterday's general election was directly inspired by Dave Hansen's decision to leave the State in order to draw public attention to the Fitz Van Walker regime's hitherto unadvertised plan to crush the right to collective bargaining.

Instead, Prof. Wegge informs us, "it was much more about a mismatch." The embedded assumption, it appears, is that Hansen v. Nygren would have been less of a mismatch, which is probably true. But it's not as if some extraneous set of circumstances or Acts of God prevented John Nygren from participating to the extent political scientists might be in a better position to evaluate substantively. It's that John Nygren himself couldn't muster enough WISGOP support to challenge Hansen. Sheesh.

In Wisconsin, tantrums thrown over technicalities

Observes a Milwaukee Journal-Sentinel community columnist:

A Dane County circuit judge was able to stall the [Fitz Van Walker regime's union-busting] bill on a technicality for months.

In the business of logical fallacies, this is known as "hand waving."

The "technicality" under consideration is Wisconsin's Open Meetings Law, which occupies an entire subchapter (Subchapter V) of the State statutes, consisting of 50 separate statutory provisions, not including cross references to other statutory provisions, annotations, published interpretations by the Attorney General, prior precedent, and so forth.

In fact a Wisconsin Department of Justice lawyer admitted on the record in that very circuit judge's court that Republican legislators had violated both the letter and the spirit (as clearly articulated by those legislators' predecessors in Wis. Stat. § 19.81) of the State Open Meetings Law.

Thus this so-called "technicality" is not so easily hand-waved away.

However, Subchapter V does not contain one single forward slash.

And as for "tantrums," apparently balloon-stabbings don't count.

The strange case of Kilkenny v. Sumi

Oy vey, the things you find on WisOpinion sometimes.*

Top conservative blogger Cindy Kilkenny of Brookfield, Waukesha Co., Wisconsin reckons she's pulled one over on Dane County Circuit Judge Maryann Sumi. "Sumi continues to make up the law as she goes along," announces Kilkenny. This is not gonna end well for CK.

The "fairly conservative" blogger Kilkenny objects to a passage in Judge Sumi's ruling yesterday in Kathleen Falk v. Fitzwalkerstan,** which is a separate action from the ongoing Ozanne v. Fitzgerald, the latter being much discussed at this here space and elsewhere. For it was in Ozanne that Judge Sumi issued her celebrated (and [fairly] conservatively reasoned) temporary restraining order against the Fitz Van Walker consortium's twilight union-smashing shenanigans.

Judge Sumi (bestest judge name evar) wrote on April 14:

[§§] 19.97(2) and (3), Wis. Stats., grant the circuit court express authority to void action taken in violation of the open meetings law and to issue injunctive relief.

Bold Kilkenny's (in at least two equally clear senses of the word bold).

The "authority to void action" comes from § 19.97(3), whereas the "authority ... to issue injunctive relief" comes from § 19.97(2). (Note well the "and" in "and to issue injunctive relief." Kilkenny even bolded it for you.) While Judge Sumi has issued (temporary) injunctive relief in accordance with § 19.97(2), she is some ways away from "void[ing] action taken in violation of the open meetings law," as the latter remedy is the one requested at the heart of Ozanne v. Fitzgerald and Judge Sumi has yet to adjudicate the merits of Ozanne's lawsuit and therefore obviously no judgment has been entered in adjudication.

Thus there is no judgment in the following sense:

However, any judgment declaring such action void shall not be entered unless the court finds, under the facts of the particular case, that the public interest in the enforcement of this subchapter outweighs any public interest which there may be in sustaining the validity of the action taken.

That's from § 19.97(3). Judge Sumi hasn't made any such judgment, so Kilkenny's assertions are both premature and totally irrelevant. I have no idea whether Cindy Kilkenny would be interested in retracting her bold "Sumi continues to make up the law as she goes along" announcement, but it certainly is false and borders on the comic.***

In fact I might rank it right up there with Gawker's legal advice to Sarah Palin. To paraphrase Judge Sumi, the defendants could have saved everyone a lot of time and trouble if they just revoted the bill.

Likewise, top WaukCo. conservative blogger Cindy Kilkenny could have just asked me. I've already been "fairly" accommodating.

* Or, the sights you see when you have no gun, as my dear departed granny (who never fired a gun in her long life) was fond of saying.

** But seriously folks, Dane County v. State of Wisconsin.

*** And it's probably too late anyways, since it's been immortalized at and by the WisOpinion.com aggregator.

eta: Cindy Kilkenny responds. But obviously I have never, ever once said or suggested any of those things. If I didn't think anybody but a "liberal elitist" would understand, then why would I try to explain it?

Take issue with the explanations, not some dreamed-up chimeras.

What motivated this post in the first place is the incredibly ill-informed — and vicious, as Bill Lueders enumerated — commentary about Judge Sumi's deliberations. Attempting to correct the public record has nothing to do with "liberal elitism" and I've tried to limn the transgressions even when committed by "conservative elitists."

(The latter example being legalist arrogance of the lowest order. Your correspondent can't even aspire to that degree of superciliousness.)

The press certainly won't do it, so somebody has to. Indeed, from where I sit, the press actively encourages the ill-informedness.