The issue is not about the Governor and the Legislature cutting spending. That would have been accomplished without trying to destroy or marginalize public employee unions. Governor Walker's attempt to do so was motivated by a desire to eliminate the main opponents of the political and social agenda of the [national] Republican Party, not to ensure that State and municipal budgets were balanced. Majority Leader Fitzgerald has acknowledged that. The opposition to Governor Walker derives from his gross political miscalculations that were caused by hubris. If a governor tries to eliminate his political opponents he must ensure that he is completely successful or they will come back to haunt him, just as the unions have done to Governor Walker. Like it or not, that is how politics works. — Lester PinesOn teh web: Lester Pines.
Showing posts sorted by relevance for query Lester Pines. Sort by date Show all posts
Showing posts sorted by relevance for query Lester Pines. Sort by date Show all posts
November 15, 2011
Lester Pines explains how politics works
June 30, 2011
Wisconsin Supreme Court quote of the day
Justice [Louis] Butler was a popular member of the court and a person who was somewhat successful in building bridges among the members of the court. — Attorney Lester PinesNice going, WMC/Gableman. And wouldn't you know, it is exactly that contingent now complaining about lack of leadership on the court.
Link to video. Lester Pines is on from 37:00 to 45:00, speaking truths.
Next up is James Troupis, who says of allegations David Prosser grabbed Justice Ann Walsh Bradley around the neck with both hands: "You do have to chuckle about that." Is that so? Troupis was Prosser's attorney during the aftermath of the April 5 Supreme Court election, incidentally.
I suppose that could be the quote of the day, but for different reasons.
May 17, 2011
Angry Wisconsin left should be jubilant
And merry and gay even.
I noticed a number of my friends on the left were angered by the news that Wisconsin governor Scott Walker is withdrawing completely from defending the State's domestic partnership registry against a suit brought by Julaine Appling, a Madison spinster and bit of a nut.
They should be overjoyed, as anytime Walker's lawyers step the hell away from anything is a victory. They've done little more than create havoc and lawlessness since Walker became governor in January.
Appling attempted to have the Supreme Court hear her case (such as it is) directly in 2009, but the court declined. So Appling turned to a Dane County circuit court, which is where the action sits these days.
As Wisconsin has a constitutional amendment barring same-sex marriage, Ms. Appling and her fellow travelers argue that the domestic partnership registry creates situations "substantially similar to marriage" and therefore violates the State constitution.
The law was, ahem, published under the previous Democratic administration and Republican attorney general J.B. Van Hollen refused to defend it, alluding to some religious scruples, so then-governor Jim Doyle hired the capable attorney Lester Pines.
Scott Walker fired Lester Pines in March. Now he wants out of the case completely, which is great news. Some on the left are angry because Walker's refusal is yet another indication of his agenda to tear down whatever progress in social justice the domestic partnership registry represents. But this should come as no surprise.
Don't forget Scott Walker's running mate and now his lieutenant governor Rebecca Kleefisch, a fundamentalist Christian, on a fundamentalist Christian teevee station famously asked of the domestic registry, "Can we marry dogs? This is ridiculous."
So we already knew which Santorum-world this gang is coming from.
In the meantime Fair Wisconsin, an advocacy group specializing in these things, was granted intervening defendant status by the circuit court and will do just fine without Walker's attorneys' participation.
The less we hear from Scott Walker's lawyers the better.*
* Comic relief excepted.
P.S. Do not google Santorum.
I noticed a number of my friends on the left were angered by the news that Wisconsin governor Scott Walker is withdrawing completely from defending the State's domestic partnership registry against a suit brought by Julaine Appling, a Madison spinster and bit of a nut.
They should be overjoyed, as anytime Walker's lawyers step the hell away from anything is a victory. They've done little more than create havoc and lawlessness since Walker became governor in January.
Appling attempted to have the Supreme Court hear her case (such as it is) directly in 2009, but the court declined. So Appling turned to a Dane County circuit court, which is where the action sits these days.
As Wisconsin has a constitutional amendment barring same-sex marriage, Ms. Appling and her fellow travelers argue that the domestic partnership registry creates situations "substantially similar to marriage" and therefore violates the State constitution.
The law was, ahem, published under the previous Democratic administration and Republican attorney general J.B. Van Hollen refused to defend it, alluding to some religious scruples, so then-governor Jim Doyle hired the capable attorney Lester Pines.
The registries allow same-sex couples to take family and medical leave to care for a seriously ill partner, make end-of-life decisions and have hospital visitation rights.Yes, certainly those religious objections are understandable.
Scott Walker fired Lester Pines in March. Now he wants out of the case completely, which is great news. Some on the left are angry because Walker's refusal is yet another indication of his agenda to tear down whatever progress in social justice the domestic partnership registry represents. But this should come as no surprise.
Don't forget Scott Walker's running mate and now his lieutenant governor Rebecca Kleefisch, a fundamentalist Christian, on a fundamentalist Christian teevee station famously asked of the domestic registry, "Can we marry dogs? This is ridiculous."
So we already knew which Santorum-world this gang is coming from.
In the meantime Fair Wisconsin, an advocacy group specializing in these things, was granted intervening defendant status by the circuit court and will do just fine without Walker's attorneys' participation.
The less we hear from Scott Walker's lawyers the better.*
* Comic relief excepted.
P.S. Do not google Santorum.
June 7, 2011
Shorter Huebsch v. Sumi
If you don't have time to watch yesterday's entire marathon Wisconsin Supreme Court oral arguments, just watch these three lawyers.
Wisconsin Eye Part 2 of 3:
01:07:44 — Robert Jambois, counsel for Rep. Peter Barca
01:33:12 — Lester Pines, counsel for Sen. Mark Miller
02:05:18 — Roger Sage, counsel for Sec. of State Doug La Follette
Mr. Sage's presentation might be said to be optional, as he is addressing the question of whether 2011 Wisconsin Act 10 was published in the constitutional sense, and you already know all about that. In fact many of the issues raised by Messrs. Jambois and Pines would already be familiar to regular readers of this here blog. And while the Milwaukee Journal-Sentinel is reporting that the justices "expressed skepticism" toward the reasoning contained in Judge Sumi's temporary and final rulings, which is true to some extent, you won't hear much skepticism from the bench during either the Jambois or the Pines presentations.
And while the Journal-Sentinel reports* that "the most aggressive questioning came from Justice Michael Gableman," it came during the presentation of Dane County DA Ismail Ozanne (00:01:18) who, with all due respect, is probably less used to addressing the structural constitutional questions at issue in these two consolidated cases.
Last night apparently there were some rumors circulating that the court was preparing to vacate Judge Sumi's ruling, which would have the effect of codifying 2011 Wisconsin Act 10.** If that were to come to pass, I suspect the law might again be enjoined immediately, on the same factual grounds its publication was enjoined in the first place. And the said codification would have the effect of rendering Gableman's objections moot almost in their totality, insofar as those objections were grounded in the beloved 1943 case Goodland v. Zimmerman, which teaches that a court may not interfere with the legislative process until a bill becomes law (that is, in Wisconsin, once its publication is made).
Gableman's apparent objections appear to presume that the trial court, where Judge Sumi presides, is a rule-making authority rather than a circuit court making a narrow decision based only on the facts presented in evidence to that particular court.*** In other words, the concerns expressed by Gableman and appearing in the lead paragraphs of the Journal-Sentinel report are representative of a slippery slope fallacy.
Generally courts do not make rulings grounded in logical fallacies.
But you never know, with this one.
In any event, the guy you have to watch is Justice Patrick Crooks, who raised concerns similar to those of my friend Bill Tyroler, who suggests that the authority conferred on the district attorney by the Open Meetings Law to challenge the constitutionality of the legislative process is itself an unconstitutional delegation of power by the legislature to the executive branch, under which auspices the district attorney operates.
As this space has been observing practically since the outset of this controversy, it seems to me the only way the court can vacate Judge Sumi's very conservative, very restrained reasoning is to find the provisions of the Open Meetings Law upon which Judge Sumi relied to be themselves violative of judge-made — or at least judge-inferred — constitutional law doctrine. Why the Wisconsin Department of Justice is pursuing the objective of restricting public access to the operation of State government is either a mystery or completely typical and expected of the Republican Scott Walker administration and its disciples and allies.
* And once again, it is simply not correct to say that Judge Sumi was "allowed" to file a legal brief further to building maintenance supervisor Mike Huebsch's petition to the Supreme Court for a supervisory writ directed at Judge Sumi. Judge Sumi was ordered by the Supreme Court to file the brief. And now she is being criticized for not disobeying that order. This is how absurd the Wisconsin Department of Justice, under the direction of Deputy Attorney General Kevin St. John, has become.
** a.k.a. "legislating from the bench."
*** Among the more amusing moments during yesterday's proceedings was when Chief Justice Shirley Abrahamson directed Deputy AG St. John to cease and desist from referring to the circuit court as an "inferior court." The circuit court's function is different; it is not "inferior." And indeed the expression "inferior court" is plucked from federal law — which has no bearing on the cases at bar — where it appears in the federal Constitution. In fact, as this space has pointed out previously, despite the U.S. Constitution's reference to "inferior courts" which may be created from time to time by the Congress, the Article III judicial power inheres equally among the United States Supreme Court, the United States Courts of Appeal, and the United States District Courts (the parallel entities to the State circuit courts). Shirley is the best.
St. John, like many a right-wing ideologue, is a devotee of ad hominem.
Wisconsin Eye Part 2 of 3:
01:07:44 — Robert Jambois, counsel for Rep. Peter Barca
01:33:12 — Lester Pines, counsel for Sen. Mark Miller
02:05:18 — Roger Sage, counsel for Sec. of State Doug La Follette
Mr. Sage's presentation might be said to be optional, as he is addressing the question of whether 2011 Wisconsin Act 10 was published in the constitutional sense, and you already know all about that. In fact many of the issues raised by Messrs. Jambois and Pines would already be familiar to regular readers of this here blog. And while the Milwaukee Journal-Sentinel is reporting that the justices "expressed skepticism" toward the reasoning contained in Judge Sumi's temporary and final rulings, which is true to some extent, you won't hear much skepticism from the bench during either the Jambois or the Pines presentations.
And while the Journal-Sentinel reports* that "the most aggressive questioning came from Justice Michael Gableman," it came during the presentation of Dane County DA Ismail Ozanne (00:01:18) who, with all due respect, is probably less used to addressing the structural constitutional questions at issue in these two consolidated cases.
Last night apparently there were some rumors circulating that the court was preparing to vacate Judge Sumi's ruling, which would have the effect of codifying 2011 Wisconsin Act 10.** If that were to come to pass, I suspect the law might again be enjoined immediately, on the same factual grounds its publication was enjoined in the first place. And the said codification would have the effect of rendering Gableman's objections moot almost in their totality, insofar as those objections were grounded in the beloved 1943 case Goodland v. Zimmerman, which teaches that a court may not interfere with the legislative process until a bill becomes law (that is, in Wisconsin, once its publication is made).
Gableman's apparent objections appear to presume that the trial court, where Judge Sumi presides, is a rule-making authority rather than a circuit court making a narrow decision based only on the facts presented in evidence to that particular court.*** In other words, the concerns expressed by Gableman and appearing in the lead paragraphs of the Journal-Sentinel report are representative of a slippery slope fallacy.
Generally courts do not make rulings grounded in logical fallacies.
But you never know, with this one.
In any event, the guy you have to watch is Justice Patrick Crooks, who raised concerns similar to those of my friend Bill Tyroler, who suggests that the authority conferred on the district attorney by the Open Meetings Law to challenge the constitutionality of the legislative process is itself an unconstitutional delegation of power by the legislature to the executive branch, under which auspices the district attorney operates.
As this space has been observing practically since the outset of this controversy, it seems to me the only way the court can vacate Judge Sumi's very conservative, very restrained reasoning is to find the provisions of the Open Meetings Law upon which Judge Sumi relied to be themselves violative of judge-made — or at least judge-inferred — constitutional law doctrine. Why the Wisconsin Department of Justice is pursuing the objective of restricting public access to the operation of State government is either a mystery or completely typical and expected of the Republican Scott Walker administration and its disciples and allies.
* And once again, it is simply not correct to say that Judge Sumi was "allowed" to file a legal brief further to building maintenance supervisor Mike Huebsch's petition to the Supreme Court for a supervisory writ directed at Judge Sumi. Judge Sumi was ordered by the Supreme Court to file the brief. And now she is being criticized for not disobeying that order. This is how absurd the Wisconsin Department of Justice, under the direction of Deputy Attorney General Kevin St. John, has become.
** a.k.a. "legislating from the bench."
*** Among the more amusing moments during yesterday's proceedings was when Chief Justice Shirley Abrahamson directed Deputy AG St. John to cease and desist from referring to the circuit court as an "inferior court." The circuit court's function is different; it is not "inferior." And indeed the expression "inferior court" is plucked from federal law — which has no bearing on the cases at bar — where it appears in the federal Constitution. In fact, as this space has pointed out previously, despite the U.S. Constitution's reference to "inferior courts" which may be created from time to time by the Congress, the Article III judicial power inheres equally among the United States Supreme Court, the United States Courts of Appeal, and the United States District Courts (the parallel entities to the State circuit courts). Shirley is the best.
St. John, like many a right-wing ideologue, is a devotee of ad hominem.
September 8, 2011
Intriguing Wisconsin legal theory of the day
"We need to ease our litigation burden in this State." — Scott Walker
(Partly because she may eventually be forced to back away from it.)
Attorney Lester Pines said he was concerned about the DMV policy on not telling voters they could get IDs for free. "Potentially there is a legal problem in that it shows the State is interested as a matter of policy in charging for these [IDs], and that would be a poll tax," Pines said. "The agency's policy is to put revenue above protecting the right to vote."Leave it to Walker to fire one of the smartest lawyers in Wisconsin.
"[W]hen a citizen votes in a judicial election, he or she exercises a right guaranteed under the First Amendment of the United States Constitution." — Wis. S. Ct. Justice Patience RoggensackJustice Roggensack's claim cannot be repeated often enough.
(Partly because she may eventually be forced to back away from it.)
June 6, 2011
Wisconsin Supreme Court schedules goat rodeo
SCOWI oral argument preview: Mike Gableman is "tireless, indefatigable and brilliant." — Justice David Prosser 04/18/11In re: 2011AP000765-W and 2011AP000613-LV
This morning's line-up:
State ex rel Mike Huebsch: 50 minutes (Maria Lazar [?])The festivities commence at 9:45 a.m., Central Standard Time.
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]
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.
July 8, 2011
Walker judicial team brings the Gableman defense
Governor Scott Walker's judicial selection committee (.pdf; 3 pgs.) includes Michael Best & Friedrich partner Eric McLeod, who represented Supreme Court Justice/Gableman in the latter's unsuccessful bid to have a Wisconsin Judicial Commission ethics complaint against him dismissed.
Gableman was accused of lying in a Statewide election in 2008, Year of Our Lord. McLeod and Jim Bopp, a lawyer from Indiana, prepared Gableman's defense. I understand it's fallacious to attribute the client's views to his counsel — after all, that's what Justice/Gableman did in his unprecedentedly sleazy teevee ad* — but the judiciary is all about politics for the Walker administration, so why shouldn't it be for everybody else?
Put another way, you don't want to be cynical, but they force you.
Therefore if this is the message Walker wants to send, good for him, and if it energizes his detractors, all the better. Go for it, by all means.
On the other hand when three of the four self-described "conservative" justices who recently invented a novel form of judicial authority — which otherwise is supposed to derive from the State constitution, by the way, a connexion claimed yet ironically denied by the four "conservatives" to both the State's elected representatives and the trial judge in that case — are subject to ethics investigations and/or formal ethics complaints, it's presumed that Walker's selection committee couldn't do much worse.
Scott Walker's team also includes a fellow Gableman alumnus of Hamline University who, Walker's crack communications specialists advise us, "is currently practicing in the area of . . . Land Lord Tennant Law."
Good grief.
* Moreover, McLeod's co-counsel went so far as to malign the integrity of his client's rival by belittling him as the "type of person" who would take on a criminal case. In fact Bopp, Esq.'s remarks** were so offensive to those concerned with professional ethics that they induced Justice Patrick Crooks to switch his vote from dismissing a set of motions to have Justice/Gableman recused from criminal cases to granting those motions. That alone is a big deal and an even bigger deal that Crooks decided to make public his decision and his reasons for making it.
And it's why Lester Pines ruefully opined that nobody whoever practiced criminal defense — the right to which is guaranteed by the U.S. Constitution — could ever be a Supreme Court justice, which is most probably true, thanks to the cynical manipulation of Wisconsin's system of electing them by dishonest Republican politicians like Mike Gableman.
As was noted here in April, 2008, it's not the voters who can't be trusted when it comes to electing Supreme Court judges. It's the candidates.
** And it's not fallacious to attribute the counsel's views to the client.
Gableman was accused of lying in a Statewide election in 2008, Year of Our Lord. McLeod and Jim Bopp, a lawyer from Indiana, prepared Gableman's defense. I understand it's fallacious to attribute the client's views to his counsel — after all, that's what Justice/Gableman did in his unprecedentedly sleazy teevee ad* — but the judiciary is all about politics for the Walker administration, so why shouldn't it be for everybody else?
Put another way, you don't want to be cynical, but they force you.
Therefore if this is the message Walker wants to send, good for him, and if it energizes his detractors, all the better. Go for it, by all means.
On the other hand when three of the four self-described "conservative" justices who recently invented a novel form of judicial authority — which otherwise is supposed to derive from the State constitution, by the way, a connexion claimed yet ironically denied by the four "conservatives" to both the State's elected representatives and the trial judge in that case — are subject to ethics investigations and/or formal ethics complaints, it's presumed that Walker's selection committee couldn't do much worse.
Scott Walker's team also includes a fellow Gableman alumnus of Hamline University who, Walker's crack communications specialists advise us, "is currently practicing in the area of . . . Land Lord Tennant Law."
Good grief.
* Moreover, McLeod's co-counsel went so far as to malign the integrity of his client's rival by belittling him as the "type of person" who would take on a criminal case. In fact Bopp, Esq.'s remarks** were so offensive to those concerned with professional ethics that they induced Justice Patrick Crooks to switch his vote from dismissing a set of motions to have Justice/Gableman recused from criminal cases to granting those motions. That alone is a big deal and an even bigger deal that Crooks decided to make public his decision and his reasons for making it.
And it's why Lester Pines ruefully opined that nobody whoever practiced criminal defense — the right to which is guaranteed by the U.S. Constitution — could ever be a Supreme Court justice, which is most probably true, thanks to the cynical manipulation of Wisconsin's system of electing them by dishonest Republican politicians like Mike Gableman.
As was noted here in April, 2008, it's not the voters who can't be trusted when it comes to electing Supreme Court judges. It's the candidates.
** And it's not fallacious to attribute the counsel's views to the client.
June 2, 2011
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.
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.
October 20, 2011
Why Walker never should have fired Lester Pines
Photo ID complaint: League of Women Voters v. Walker (.pdf; 10 pgs.)
Flashback: Michael Gableman announces his paranoias to the LWV.
Flashback: Michael Gableman announces his paranoias to the LWV.
March 4, 2011
A Volokh conspirator has been appalled
Wise counsel Lester Pines fails the "laugh test," sez law prof
This is not an unreasonable interpretation. Prof. Jim Lindgren argues that in the Wisconsin constitution's Article IV, Section 15, "all cases" means only "all civil cases" and then later in his analysis, "all cases" means only "all court cases." But that isn't what the constitution says.
What Prof. Lindgren is asserting, in essence, is that the absenteeism of the 14 Democratic Senators is not a "case" at all, and therefore falls outside the "all cases" universe, because the absenteeism is purely a matter within the legislative and not the judicial purview: the constitution doesn't mean what it says. Rather, it says what it meant 241 years ago, when one might be arrested for a civil offense.
Moreover, if "arrest" means only "civil arrest," then somebody needs to explain why the drafters of Art. IV, Sec. 15 separated "arrest" from "civil process" — in two distinct clauses divided by a semicolon and the word "nor" — if the arrest in question is itself a component or function of civil process. Prof. Lindgren has not so explained.
For his historical perspective, Prof. Lindgren relies primarily ("There it is," he exults) on a citation to a Lord Mansfield, anno 1770, which he discovered in a 1908 U.S. Supreme Court case called Williamson v. United States. But the immediately subsequent text in Williamson, upon which Prof. Lindgren studiously does not rely, reads:
Because as far as I can tell, there has been none.
Furthermore Prof. Lindgren might be making some serious trouble for himself if he wishes to argue that the alleged offenses for which the 14 Democrats are being pursued are indictable ones, because then he would be turning this episode into precisely the sort of "case" that he claims the Wisconsin constitution does not contemplate.
Concludes Prof. Lindgren, in the form of a quasi-conjunction:
Thus reversing Prof. Lindgren's conjunction, we have: "The privilege not to be arrested in cases* is just as much a legislative privilege as the privilege to compel attendance." Quite so. Which is where we began, with the Senate's privilege to compel abutting the Senators' privilege not to be arrested and, with the greatest respect to Prof. Lindgren's appalled state and his laugh tests, he doesn't appear to have solved the problem — if indeed there exists a problem at all.
The plain language demonstrates otherwise.
* "[A]ll cases, except treason, felony and breach of the peace; ... "
P.S. The Volokhians are not always right, you know.
This is not an unreasonable interpretation. Prof. Jim Lindgren argues that in the Wisconsin constitution's Article IV, Section 15, "all cases" means only "all civil cases" and then later in his analysis, "all cases" means only "all court cases." But that isn't what the constitution says.
What Prof. Lindgren is asserting, in essence, is that the absenteeism of the 14 Democratic Senators is not a "case" at all, and therefore falls outside the "all cases" universe, because the absenteeism is purely a matter within the legislative and not the judicial purview: the constitution doesn't mean what it says. Rather, it says what it meant 241 years ago, when one might be arrested for a civil offense.
Moreover, if "arrest" means only "civil arrest," then somebody needs to explain why the drafters of Art. IV, Sec. 15 separated "arrest" from "civil process" — in two distinct clauses divided by a semicolon and the word "nor" — if the arrest in question is itself a component or function of civil process. Prof. Lindgren has not so explained.
For his historical perspective, Prof. Lindgren relies primarily ("There it is," he exults) on a citation to a Lord Mansfield, anno 1770, which he discovered in a 1908 U.S. Supreme Court case called Williamson v. United States. But the immediately subsequent text in Williamson, upon which Prof. Lindgren studiously does not rely, reads:
Blackstone, in 1765, discussing the subject of the privileges of Parliament, says [citation omitted]:Which is essentially what the Wisconsin constitution says (as do the Wisconsin statutes: see below). So if Prof. Lindgren wishes to rely on the historical antecedents recorded in Williamson v. United States, I should expect that he needs to point at which State or federal "indictable offense" the 14 Democratic Senators have committed."Neither can any member of either house be arrested and taken into custody, unless for some indictable offense, without a breach of the privilege of Parliament."
Because as far as I can tell, there has been none.
Furthermore Prof. Lindgren might be making some serious trouble for himself if he wishes to argue that the alleged offenses for which the 14 Democrats are being pursued are indictable ones, because then he would be turning this episode into precisely the sort of "case" that he claims the Wisconsin constitution does not contemplate.
Concludes Prof. Lindgren, in the form of a quasi-conjunction:
The privilege to compel attendance is just as much a legislative privilege as the privilege not to be arrested in court cases."Court cases," however, is Prof. Lindgren's insertion of constitutional language that doesn't exist, based on selecting from two apparently dueling 18th-century British aristocrats. Until Lords Mansfield's and Blackstone's variance is reconciled, Mansfield's alone is unavailing.
Thus reversing Prof. Lindgren's conjunction, we have: "The privilege not to be arrested in cases* is just as much a legislative privilege as the privilege to compel attendance." Quite so. Which is where we began, with the Senate's privilege to compel abutting the Senators' privilege not to be arrested and, with the greatest respect to Prof. Lindgren's appalled state and his laugh tests, he doesn't appear to have solved the problem — if indeed there exists a problem at all.
The plain language demonstrates otherwise.
* "[A]ll cases, except treason, felony and breach of the peace; ... "
P.S. The Volokhians are not always right, you know.
March 24, 2011
Tort reform fails to halt frivolous metaphors
We asked James Troupis: Was the departure of the 14 Democrats a 9-11 type emergency? "Yes," he responded.Seriously.
Now "Desperado" Walker can hire Troupis after firing Lester Pines.
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