Wisconsin Reporter occasionally good for a laugh

I missed this at the time, but it just popped up in a Google search for something else. This is from the Wisconsin Reporter, a collection of conservative Republican hacks pretending to be a "news service":

Obviously nobody violated state open meetings law in passing the collective bargaining bill ...

Interesting, because those alleged to have violated the State open meetings law admitted to it on the record, in court. And not only did they admit to violating the explicit letter of the statutes, they admitted the intent of the Wisconsin constitution's directive to the legislature to provide minimum public access to its affairs governed any picayune objections derived from medieval foreign common law relics. "Correct, absolutely correct," they confirmed in response to the presiding judge's view that the State constitution embodies "a vastly external expectation — [a] right — that people have under the Open Meetings Law."

Continues the Wisconsin "Reporter":

... and even if they did, the judge had no power to delay it.

Which is funny because you know what?

Not enjoining the bill would have been a wholesale betrayal of the State statutes. Wisconsin's Open Meetings Law explicitly grants the courts injunctive power pursuant to alleged violations of the Open Meetings Law but the injunctive power is not to be exercised unless the party who requests the injunction can show a reasonable likelihood of success on the merits of his case, which in this instance was that same allegation that legislative Republicans had violated the Open Meetings Law.

And in this instance it didn't as much matter whether the requesting party — the Dane County District Attorney — had affirmatively demonstrated its likelihood of succeeding because the legislative Republicans, by and through their Department of Justice counsel, themselves affirmed the District Attorney's meritoriousness in court.

And rather unequivocally — "Absolutely correct" — at that.

[Dane County Circuit Judge Maryann] Sumi ... [said] legislative Republicans violated opening meetings law.

Yes, because those legislative Republicans admitted it in her court.

What on Earth is so difficult to understand about this?

Wisconsin Open Meetings Law too burdensome

Dept. of Absurd Results:

There is a somewhat disturbing policy issue to the argument made in defense of the legislature's process in this case — the implication that the rules the legislature makes for everyone else should not apply to the legislature itself. If, in this case, the Open Meetings Law is too burdensome for the legislature to follow, it is unclear why other units of government should be expected to follow them. — MULS blawg commenter Bruce Thompson

Yes exactly. Although it's less an implication than it is a clear statement of the law. And that particular argument being made in defense of the legislature is being made in court by Republican Scott Walker and the Republican leadership in the legislature, and put forth by the Wisconsin Department of Justice, which is "representing the Republicans."

I don't know why those Republicans and their supporters in this grave matter don't just come out and say what their objective is: It is having the Wisconsin Supreme Court declare the Open Meetings Law — which guarantees reasonable public access to government — unconstitutional.

That's the takeaway, as they say. That's the real story.

The one that our librul media isn't reporting.

They've already tried locking all of the doors to the State Capitol and you know Scott Fitzgerald was aware of the law that he needed to provide at a minimum two hours notice for his March 9 twilight jamboree, as evidenced by the literally last-minute scrambling around to do so revealed by the sworn testimony in Judge Maryann Sumi's courtroom.

By the way, has Scott Walker's building maintenance supervisor Mike Huebsch ever determined whether any of the scuffed limestone piers were caused by Senate aide Rachel Veum's clogs? Anything's possible!

eta: [Wis. AG J.B.] Van Hollen is acting shamelessly, and shamefully.

At least somebody else gets it.

Maintaining a political blog in Wisconsin

Is like banging your head against a [scuffed limestone] wall:

[Dane County Circuit Court Judge Maryann] Sumi argues that the state senate violated the open-meetings law by failing to provide 24 hours' notice of a legislative meeting — in this case, the conference committee meeting that forwarded the bill to the full senate. Yet, in her order, she doesn’t address the clear exemption to the rule provided in Senate Rule 93, which allows for no notice of proceedings for conference committee bills. The state statutes clearly give precedence to legislative rules in the case of conflict; Sumi simply believes no conflict exists, ignoring the fact that the bill was, in fact, a conference committee bill.

The rest is blargh blargh dirty hippies blargh union thugs blargh. This is in the National Review (which once upon a time preluded its founder's teevee chat show with the second Brandenburg: these days Old Bach is spinning in his crypt like Frank Luntz on methamphetamines) and its own rather less meticulous composer is the Wisconsin Policy Research Institute "senior fellow" Christian Schneider. WPRI is another outfit wrapped up with Journal Communications, Inc. The Milwaukee Journal-Sentinel not infrequently features WPRI "policy research" as front page news (the U.S. Court of Appeals for the Seventh Circuit is considerably less impressed), Christian Schneider is an oft-featured columnist, and Mike Nichols, another WPRI "senior fellow," is a regular columnist.

And Charlie Sykes, another of Journal Communications, Inc.'s marquee performer/clowns, edits WPRI's own magazine and so on and so forth.

They're every single one of them cuddled together in bed.

They also generally don't know what they're talking about and the above is a useful case in point. In fact Judge Sumi found that the defendants failed to give two hours notice of the meeting, whereas the statute is as clear as clear can be: "in no case may the notice be provided less than 2 hours in advance of the meeting." In. No. Case. Judicial conservatives, "strict constructionists," "plain meaning textualists," are you listening.

Hypocrite

Moreover the violation concerned the Republicans' selection of a tiny venue for the conference committee meeting, which served to disallow members of the public from attending, where larger accommodation was available. This the WPRI "senior fellow" Schneider simply ignores, despite its being among the crucial connections between the Open Meetings Law and the Wisconsin constitution at the heart of the action.

Schneider then hypocritically claims that Judge Sumi "doesn’t address the clear exemption to the rule provided in Senate Rule 93." Well of course she does, as this invalid argument was among the Fitzgeralds' defenses to the complaint. And there is no such "clear exemption" because Senate Rule 93 addresses the manner of notice required, and not the time of notice required. We've been through this months ago, after Ellen Nowak, chief of staff to the Waukesha County executive, had published at WisPolitics dot com her tissue of defamatory misrepresentations.

Judge Sumi doesn't "simply believe" no conflict exists: The unrebutted evidence that witnesses presented during the court's hearings demonstrated that no conflict exists. And the cherry on the backside of Schneider's remarkable cluelessness is his appeal to a Senate Rule for guidance on what he admits was a conference committee, for which Joint Rules of procedure exist, and which Judge Sumi also addressed.

Senior fellow: The law "allows for no notice." Pure b.s.

In short, WPRI's Schneider is hopeless, uninformed, and flat wrong.

Perfesser

Meanwhile in Journal Communications, Inc.'s daily organ the Milwaukee Journal-Sentinel, the equally addled Patrick McIlheran appeals to yet another Journal Communications, Inc. frequent columnist, Marquette's professor of #rwnj law Rick Esenberg,* to whom McIlheran laughably attributes a "most enlightening insight," linking to the prof's blog post.

McIlheran claims Esenberg "dismantled Sumi's understanding." Except Esenberg did no such thing and in fact repeats the travesty of law committed by the WaukCo. executive's chief of staff. And indeed if one follows the comments thread at Esenberg's blog you will discover your humble correspondent reiterating precisely the evidence and law which yesterday appeared as among the bases for Judge Sumi's decision, and which Esenberg either simply handwaves away or ignores completely.

And has never addressed, as far as I know. Because it's best to remain silent when you are wrong, I suppose, and allow your quasi-colleagues at Journal Communications, Inc. to wallow in their misunderstandings and present long-since-debunked "arguments" as alleged "journalism."

And, naturally, WPRI/Journal Communications, Inc.'s Charlie Sykes will repeat this complete nonsense once again this morning. We discussed similar situations at our panel event in Madison on May 12, and the Journal Communications, Inc. family is making us look like prophets.

Now maybe if we were to predict the Rapture, it will happen for sure and then all the JRNers will fly off to ... somewhere. It really is a joke.

* Esenberg is also trundled out as an expert "who has followed the case closely" in the Journal-Sentinel's straight news report of yesterday's decision. Did you know that he's the only lawyer in the State who has?

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.

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.)

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."

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.

Rappin' with Dad29, foil-hatted conspiracist

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

Take it away, Dad29:

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

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

It was difficult to resist, on a lazy Sunday:

What Madison appeals court ruling?

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

Hear that Dad?

Dad29:

What Madison appeals court ruling?

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

Your humble scribe:

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

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

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

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

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

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

Dad29, back for more:

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

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

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

Your humble scribe:

I have, from Prof. Rick ...

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

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

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

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

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

More Père le vingt-neuf:

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

And some law:

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

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

Why, it's unthinkable!

You're funny Dad.

Finis.

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

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

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.

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."

'OML convenient to my rhetorical purposes today.'

The [Greenfield public school] board felt it could not change the location because of requirements of the open meetings law which, of course, requires notice of a meeting's location.

True. "Every public notice of a meeting of a governmental body shall set forth the time, date, place and subject matter of the meeting." Now please have a look to the two words at the immediate left of "place."

As a matter of law, each item in that list of requirements is equally as compelling. And, as the Open Meetings Law goes on to admonish:

"[S]horter notice [than 24 hours] may be given, but in no case may the notice be provided less than 2 hours in advance of the meeting."

Meet Marquette Prof. Rick Esenberg, your picker of the legal cherries.

Speaking of which, check out this blog post of Esenberg's, where he begins quoting the Wisconsin election bribery statute halfway through it:

The statute prohibits providing a thing of value "to, or for, any elector, or to or for any other person, in order to induce any elector to ... [g]o to or refrain from going to the polls."

Which, again, is true. The statute does prohibit the said providing. However, the statute in its entirety prohibits more than just providing:

[Any person who] [o]ffers, gives, lends or promises to give or lend, or endeavors to procure, anything of value, or any office or employment or any privilege or immunity to, or for, any elector, or to or for any other person, in order to induce any elector ...

Esenberg simply ignores all the rest, which I guess you can get away with in a Blogspot post, but he sure wouldn't get away with it anywhere else.

Here's a link to the statute, which Esenberg doesn't, er, provide, either.

If any of the complaints lodged against various entities alleging various electioneering shenanigans have any merit, it's the one lodged against Wisconsin Right to Life and its $75 voucher cards, the same complaint Prof. Esenberg was busily spinning in a deliberately misleading fashion.

Because what's at issue is the offering and the promising.

Meanwhile our local daily newspaper, the Milwaukee Journal-Sentinel, continues to "provide" Prof. Esenberg as a disinterested academic.

Get real.

Milwaukee Journal-Sentinel editorial "bizarre"

Says it — or they, or she, or he — of this week's Wisconsin Supreme Court marathon oral arguments, characterizing as among Governor Scott Walker's lawyer's various claims and assertions:

... the bizarre argument articulated Monday by Deputy Attorney General Kevin St. John, who said during a state Supreme Court hearing that courts could not invalidate a statute because lawmakers violated the open meetings law.

While St. John's hour-long ramble was indeed occasionally bizarre to the extent the ethically-challenged judge Mike Gableman had several times interruptingly to leap from the bench — albeit not literally — to come to the attorney's assistance, the argument St. John was attempting to make is that courts could not invalidate a bill until it had become law.

Moreover, St. John is in denial over whether Republican lawmakers violated the Open Meetings Law (which they very clearly did: one of St. John's own colleagues admitted it on the record, leaving the trial court no choice but to enjoin the WISGOP shenanigans). What is bizarre is the Journal-Sentinel editorial board's reliance on the organ's own report of the proceedings, which claims Dane County Circuit Judge Maryann Sumi "was allowed" to file a brief in an action brought by (purportedly) Walker's right-hand building maintenance supervisor Mike Huebsch.

"Normally, judges don't file briefs in cases with the Supreme Court," reports the J-S, which is true as a general matter, I suppose, except in this case, the Dane County Circuit Court, Judge Sumi presiding, was named as a party to the action,* so it would be abnormal if a party to an appellate court case didn't file a brief. But the facts of the matter — which bear repeating once again — are that Judge Sumi was ordered to file the brief, pursuant to Wis. Stat. § 809.51(2) and pursuant to the Supreme Court's order of May 4, 2011. Those are just the plain facts.

And those would be kind of important points.

"Normally, Wisconsin circuit court judges don't flagrantly disobey orders of the Wisconsin Supreme Court," is more like it, and accurate.

* "Respondent," to be exact, which of itself should be self-explanatory.

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.

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.

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.

Club for Grothman files complaint against Sumi

Reports the Milwaukee Journal-Sentinel.

It would be nice if the Journal-Sentinel reported Sumi was ordered to submit the legal brief the Club for Grothman is complaining about.

(The link is to the Milwaukee Journal-Sentinel's calumnist Patrick McIlheran flat-out lying about Judge Maryann Sumi's decision and order.)

It's a ridiculous complaint filed by ridiculous people, going nowhere.

Here's another one:

Barca's attorney says GOP intended to break meetings law

But Robert Jambois said no such thing. In fact the trial court's record showed that the Republicans in the legislature tried to cut the Open Meetings Law requirement of two hours notice as close to the bone as possible. Which is actually worse, because it demonstrates that the Republicans knew they had to provide a minimum of two hours notice and then they screwed up big time. The rest is post hoc rationalization.

Read the (non-wingnut) blogs, not the paper.

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.

Wisconsin Supreme Court accepts five new cases

But none of them is "Petition of Walker."

WICourts.gov news release.

One is of a part to the ongoing Miranda warning wrangle, however.

Which reminds me, on Monday, Deputy AG Kevin St. John declared that "the Open Meetings Law is not a rule of constitutional law," by way of claiming the requirements of the OML are not explicitly mandated by the Wisconsin constitution. According to the identical reasoning, Mr. St. John might further argue that neither is the Miranda warning "a rule of constitutional law." However, we know that it is indeed a rule of constitutional law because former Chief Justice of the U.S. Supreme Court (and formerly of Shorewood, Wisconsin) William Rehnquist told us so in the celebrated Miranda case, 2000's Dickerson v. United States.*

Thus if we apply the reasoning of Dickerson to Walker's predicament, the governor and his Republican friends and counsel don't fare so well.

So in retrospect maybe he/they didn't want to go there.

* This was a pretty good blawg poast, if I do say so meself.

Charlie Sykes's Rules for Wisconsin Radicals

Such a sad little man, as Ricky Gervais would say.

The medium wave howler's howling irony is pervasive:

Litigate everything.

Like, file a frivolous lawsuit in Oconto County.

Bully, intimidate, and threaten ...

Like, issue an arrest warrant for a six-months-pregnant woman (pursuant to the failed obiter dictum of the Oconto County court).

[Use] the open meetings law to tie up the union bill.

To hell with the Wisconsin constitution, eh Charlie?

Break laws, ignore rules ...

Sykes's BFF Scott Walker broke the law when he shut the people out of the Capitol. Walker's BFF Scott Fitzgerald ignored the rules* when he gave one hour and fifty-seven minutes notice for a legislative meeting. Sykes gives no examples, but he couldn't top those anyway.

Remember: there is no voter fraud, except when the charge works for our benefit.

Remember: This is Sykes talking about liberals and Democrats.

Citing no credible evidence, Charlie Sykes, in the aftermath of last Tuesday’s squeaker of a Supreme Court election, alluded to the likelihood of "voter fraud" in Milwaukee. It was the explanation that the conservative WTMJ AM 620 talker proffered for why challenger JoAnne Kloppenburg appeared to have just narrowly edged out incumbent Justice David Prosser in the balloting.

Erik Gunn's Inside Track. Do read Gunn's entire piece because you probably haven't heard the last of what went on in Waukesha County.

Accuse conservatives of hypocrisy a lot.

'Fraid that can't be helped Charlie. Y'all beg for it.

Never, ever stop.

Well he got that one right at least.

* "Rules" is being overly generous. It's the law.

Procedure is the true conservative's polestar

Here's Ed Fallone and Rick Esenberg talking about Petition of Walker.

Prof. Fallone is foursquare on the money: the Gableman court usurped procedure, invented jurisdiction, and unwarrantedly scapegoated a circuit court judge who followed both the spirit and the letter of the law (in fact the Open Meetings Law's spirit is clearly delineated in its letter).

There are also a couple of hilarious moments of vintage Esenberg, once where he perishes figuratively at the thought of anybody impugning the competence of any circuit court judge, himself having literally sneered on public radio at Judge Sumi not that long ago, and another where Esenberg, who once upon a time complained mightily that Judge Sumi failed to sufficiently explicate her temporary restraining order to Rick Esenberg, now merely sighs and handwaves away the Mike Gableman court's inability to properly elucidate its judical fiat. I'm not sure how to characterize Prof. Rick's comical disingenuousness, but whatever it is it lies somewhere between naked double standards and pure hypocrisy.

No wonder Esenberg's broken into Fox News. He makes the perfect fit.

And maybe we can help get Gableman his own show on Fox Business.

Forward [Slash]!