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.

Right-wing condescension in Wisconsin, Day Two

CAPITOL KAOS, Agent Rick reporting for Faux News duty

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Scott Fitzgerald orders 2011 WI Act 10 printed

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

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

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

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

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

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

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

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

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

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

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

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

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

The utter farce continues ... Welcome to Fitzwalkerstan.

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

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

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

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

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

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

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

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

Priceless, and funny 'cause it's true.

Much more here also.

Slimy Scott Fitzgerald

Ends justify the means?

Like them or not, our courts exist for a reason — to resolve legal disputes. That's what was in the works when [Wisconsin Republican Senate leader Scott] Fitzgerald jumped the gun and tried to do an end run around the judicial process.

True dat. The author, Atty. Richard A. Ginkowski, is a conservative Republican and an assistant DA in Kenosha County, Wisconsin.

And, from Marquette professor of law Ed Fallone:

[Wis. Stat. § 35.095] deals with the LRB's job to print and make available copies of the laws. . . . Attempting to bypass the constitution's requirement of official publication is an unconstitutional action.

Section 35.095's popular name is the Kinko's amendment.

Nowadays it's news when Big Fitz is not violating the constitution.

Leading economic indicators in the news

Any person who intentionally has or offers to have or requests to have nonmarital sexual intercourse for anything of value. § 944.30(1)

Columbia County prosecutors said 72-year-old Gerald Hilliker solicited sex at a truck stop west of Portage on July 13th. They said he distributed a flyer* with a list of sex acts he was apparently willing to perform.

— Pierce County Herald

It's getting tough out there.

* Wonder if he got them printed at Kinko's.

More on Big Fitz's Kinko's Amendment

From the estimable MULS professor Edward Fallone.

I do not see my analysis as differing in any significant way from the analysis previously set forth in this [here awesome illusory tenant] blog. — Ed Fallone, prof. of constitutional law

Yess! [/marvalbert]

Incidentally, this blawg was posted Friday evening before the Legislative Reference Bureau — or anybody else — had weighed in.

Just sayin'.