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."

Quick note on Van Hollen's appeal by permission

Sorry I'm assuming some familiarity with the case, but it's late ...

I wondered earlier how non-compliance with an Open Meetings Law can be a "purely internal legislative proceeding" (Milwaukee Journal Sentinel v. Wisconsin Dept. of Administration, 2009 WI 79, emphasis added). The distinction is crucial to the question of whether the Wisconsin courts have the constitutional authority to review the legislature's activities in following its own internal rules, even when those rules conflict with the Wisconsin statutes (a.k.a., "The Law").

In turn, that question is crucial to the case.

Then I returned to WisEye and found this exchange from last Friday's hearing in Dane County circuit court, which I hadn't heard earlier:

Judge Sumi: We're not talking about the legislature enforcing its own rules, we're talking about the legislature obeying a law that gives people public access to government.

AAG Lazar: Correct.

Judge Sumi: It's not an internal rule, it's a vastly external expectation — [a] right — that people have under the Open Meetings Law.

AAG Lazar: Absolutely correct.

The AAG's emphatic concessions are in direct contradiction to the legal arguments J.B. Van Hollen advanced to the court of appeals Monday morning.* And JBVH has at least one other problem as well.**

A big problem, I reckon.

* Petition For Leave To Appeal (.pdf; 39 pgs.)

** And don't tell me that "in no case" means "in no civil case."

FitzMeeting held within 120 minutes +/- three

That's even a pretty wide tolerance for rebar

"We are supremely confident that we followed the law perfectly," said Andrew Welhouse, spox for Scott Fitzgerald.

This is possibly the highlight* of today's Dane County circuit court hearing in Ozanne v. Fitzgerald. Plaintiff Ozanne is the Dane County district attorney. The defendants are the top Republican leaders in the Wisconsin legislature. At issue is the time elapsed between the notification of and commencement of a conference committee meeting; that is, a meeting between both legislative houses (each of which is run by a Republican called Fitzgerald, which sounds like a happy coincidence until you realize they are brothers). Anyway:

Judge Sumi: Before you move on, can you tell me how the two-hour notice requirement was met. Or, what evidence would I hear if I were to hear evidence on this.

AAG Lazar: Well, and that's, that is a big question. {Affirmative - ed.] I think the question has been looked at. We haven't fully developed it. We do know the timetable was that at some point around four o'clock — and we have been told that, I don't know that it could be pinpointed — between four, maybe 4:06, 4:03, 4:04, there was a notice published on, or posted, on a bulletin board. There's going to be some testimony as well about an e-mail that's irrelevant. The relevancy is the notice that was posted on the bulletin board.

The testimony is going to come out that I don't think anyone can establish with any definitive answer exactly when that happened. It was around four and we will note that the conference committee met and went into session I believe at 6:03. So we think that there was compliance with the two-hour requirement. We think that they, the plaintiffs in this case, bear the burden of proof of establishing that there was not, and I don't believe that they will get there, beyond a reasonable doubt.

Judge Sumi then politely points out that the burden is not on the plaintiffs but rather on the defendant Republican legislative leaders to prove they're entitled to an exemption from the public meetings law, a point which AAG Lazar in effect concedes. It was a rough moment for the AAG, in particular those moments 4:06 and 4:04. But she did well with what she had and you can't blame her. The blame lies with those Republican leaders who, had they the definitive evidence to present, would have presented it in court this morning.

Instead I imagine the foregoing was more definitive in the sense of its considerable role in the judge's reverberating decision to prevent the publication of Scott Walker's hastily retooled "budget repair bill."

Thus has Sen. Fitzgerald arrived at the corner of Hubris and Karma.

Gov. Walker, for his own part, strains to pretend obliviousness.

Recall (pun intended), he and they expect all this to just blow over.

* A highlight of another sort occurs while the PA system is acting up, and during AAG Means's presentation, a computer reboots and a crescendo of synthesized strings begins to rise, giving the court pause. "This happens every time I speak, your honor," cracks Means.

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.

Law profs & wing-nuts gone noticeably wild

Further to this prior quick note ...

In an unwarrantedly abusive and ultimately embarrassing (for her) column, former legal counsel and chief of staff to the Assembly speaker and current chief of staff to the Waukesha County executive Ellen Nowak went off yesterday on both Dane County Circuit Court Judge Maryann Sumi and on the Milwaukee Journal-Sentinel.

Do not be fooled: Ms. Nowak's screed is bogus to the core.

As currently featured on the Instaputz

Unsurprisingly, local wing-nuts Charlie Sykes* and Patrick McIlheran fell for it. More surprisingly, so did Marquette University professor of law Rick Esenberg (by whose blog post the inexplicably popular Ann Althouse was duped, thus returning us to unsurprising territory).

Since then Ms. Nowak's intemperate accusations — which would be at least low comedy if they weren't so gobsmackingly negligent — have gone wing-nut national, all the way into the Prof. Instaputz Pajamas.

Anyway, advises Ellen Nowak: "Let's focus on the heart of the defendants' (and the unions [sic]) dispute: whether the conference committee meeting was properly noticed." "It was," claims Nowak.

She goes on: "The rules governing procedure of the legislative houses are also set at the beginning of each session. Those rules include certain procedures when a special or extraordinary is called."

Now pay close attention, because these are Nowak's money quotes:

Here, the relevant rules are Senate Rule 93(3) [sic] and its counterpart, Assembly Rule 93(3). They state: "no notice of hearing before a committee shall be required other than posting on the legislative bulletin board."

Except that isn't what they state at all. Firstly, the two Rules are not identical, they're merely similar; and secondly, even if Nowak was offering a paraphrase — which she obviously isn't, as her faux rendering is enclosed in quotation marks — it's still wildly inaccurate.

State's top law enforcement officer should know

I suppose we can all forgive a former Assembly counsel for providing the incorrect citation to a Senate rule but no counsel can be so easily absolved of completely misquoting or presenting obsolete renderings of both of the Rules. That is appalling, truly. What they do read are as follows, respectively, according to their most recent adoptions:**

Senate Rule 93(2):
A notice of a committee meeting is not required other than posting on the legislative bulletin board, and a bulletin of committee hearings may not be published.

And:

Assembly Rule 93(3):
A notice of hearings before committees is not required other than posting on the legislative bulletin boards, and a schedule of committee activities need not be published.

That also happens to be the version of Senate Rule 93(2) that Wisconsin's attorney general cites and quotes in his petition for leave to appeal, filed with the court of appeals yesterday (see the AG's Footnote 11: the AG, it must be "noticed," represents both the current Senate Majority Leader and the current Assembly Leader, the Bros. Fitzgerald, so presumably they're all up on the current Rules).

Thus is Novak's hyperbolic tirade not only itself obsolete, but arguably ... I'm not going to say it, out of professional courtesy, exactly the sort of courtesy not extended to Judge Sumi by Ms. Nowak (Judge Sumi "ignored the law" and "assault[ed] ... the judiciary and the legislature," asserts Counselor Nowak, leading the wing-nut parade).

In short, the alleged inconsistency is entirely manufactured

Of course "notice" has more than one meaning. Even lawyers know this; that's why their dictionaries contain multiple definitions for the same term. In one sense, "notice" has a temporal element, as in, "I'm giving you (fair) notice," where the notice precedes some event.

And in another sense, it doesn't: a notice is a printed message, a bulletin. And the latter is what's meant by the legislative Rules indented above. Therefore does the claim fail that Wis. Stat. §19.87(2),*** which resolves conflicts between legislative Rules and other Wisconsin statutes, is in play, because there is no conflict.

That is, the Open Meetings Law command contained in Wis. Stat. §19.84(3)**** that "in no case may the notice be provided less than 2 [two] hours in advance of the meeting" is perfectly consistent with the legislative Rules, which direct where the — physical, not temporal — notice must be affixed: "on the legislative bulletin board(s)."

Notice (pun intended) that in both Rules, it's "A notice." Not just "notice" or, as Ms. Nowak puts it, "no notice," whose remarkably irresponsible inaccuracy purports to imbue the Rule with the temporal element required by Nowak's (alleged) argument, a temporal element that simply is not there. It's a shameful performance all around.

And, as noted earlier in this here space, the assistant attorney general representing the Brothers Fitzgerald et al conceded in court not only that the defendants Fitzgerald cannot demonstrate the two-hour requirement was met, but admitted the likelihood that requirement was not met, specifically by as much as three minutes.

That does not bode well for the FitzWalkerAG's case. And neither does this. Hence the spreading desperation, is what I suspect.
________________

* "See Ellen Nowak's excellent piece at SykesWrites. It addresses the kind of fallacious logic advanced by Free Lunch." — George Mitchell.

Hilarious and sad. Free Lunch is a frequent visitor and commenter at this blog and is hardly known to employ any kind of "fallacious logic."

** A fact confirmed this morning by the Legislative Reference Bureau. That's how much I couldn't believe my own eyes, to the extent I actually had to pick up the phone and call somebody for directions.

*** "No provision of this subchapter [subchapter V] which conflicts with a rule of the senate or assembly or joint rule of the legislature shall apply to a meeting conducted in compliance with such rule."

**** "Public notice of every meeting of a governmental body shall be given at least 24 hours prior to the commencement of such meeting unless for good cause such notice is impossible or impractical, in which case shorter notice may be given, but in no case may the notice be provided less than 2 hours in advance of the meeting."

Appendix:

Judge Sumi: We're not talking about the legislature enforcing its own rules, we're talking about the legislature obeying a law that gives people public access to government.

AAG Lazar: Correct.

Judge Sumi: It's not an internal rule, it's a vastly external expectation — [a] right — that people have under the Open Meetings Law.

AAG Lazar: Absolutely correct. [Momentary discussion of §19.87(2) and the Senate and Assembly Rules 93] [W]hen they're in special session, all that is required is a notice on the bulletin board and that is what was done and they are able to drop it down to that two-hour from 24-hour and we would contend in this case that that was met ...

Emphases added.

Both the judge and the AAG are in accord, together with Rules 93: "A written or printed announcement." — Black's Law Dictionary, 7th ed.

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.