Justice Roggensack is hardly a conservative judge

Once again, much is being made in the newspapers these days of the altercation which took place in the chambers of Wisconsin Supreme Court Justice Ann Walsh Bradley back in June, 2011.

One reason for that is because there is an impending general election* for the seat of incumbent Justice Patience Roggensack and another reason is that Justice Bradley removed herself last week from the case of Wisconsin Judicial Commission v. David T. Prosser, Jr.

It was an altercation that Justice Roggensack had "almost nothing to do with," says risibly lies one of the Milwaukee Journal Sentinel's several in-house right-wing Bradley (no relation) Foundation propagandists.

Unless authoring a meanspirited, lawless order and then leading her little posse of alleged "conservatives" into Justice Bradley's chambers to insist on its immediate publication to allay the concerns of Republican allies in the Wisconsin legislature counts as having "almost nothing to do with" the subsequent confrontation among justices.

Meanspirited in the sense that the order is practically a personal attack on Dane County Circuit Court Judge Maryann Sumi, in whose courtroom the Republican legislators' attorneys freely admitted they had violated both the Wisconsin statutes and the Wisconsin constitution.

Lawless in the sense that Justice Roggensack and her Republican pals invented a jurisidictional authority for the Wisconsin Supreme Court that not only is not found in the State constitution but is explicitly contraindicated in the rules of appellate procedure: There is no such thing as "supervisory/original jurisdiction." They represent separate grounds for a party having her case heard by the Supreme Court.

In fact, there is no such thing as "supervisory" jurisdiction among the Wisconsin Supreme Court's panoply of constitutional powers, but there is superintending jurisdiction. Therefore if Roggensack and her fellow Republicans wanted to dream up the law more accurately, they should have invented "superintending/original" jurisdiction.

Furthermore in Justice Roggensack's own granting of her motion for recusal, she cites a Wisconsin statute she apparently believes requires her recusal. Except the statute refers to "any civil or criminal action or proceeding," whereas WJC v. Prosser is neither a criminal nor a civil case, thus the statute upon which Roggensack depends is irrelevant.

And they call her a "conservative" judge? Hardly. To top it all off, the same alleged conservatives then utterly contradicted themselves.

Where has this been reported? Nowhere, except at this here space.

* The primary election is Tuesday, February 19.

The only conservative on that ticket is Ed Fallone.

Justice Roggensack's extreme agenda

Here's a profile of Wisconsin's first mother-daughter judicial team, Supreme Court Justice Patience Roggensack and newly elected Milwaukee County Circuit Judge Ellen Brostrom.

Roggensack has been labeled a conservative, a tag she rejects.

"Some people point to Chief Justice (Shirley) Abrahamson and say the court is so liberal," Roggensack said. "But we vote 7-0 on most of the cases that come before us."

Somebody better tell Jefferson County Circuit Judge Randy Koschnick.

During this year's Supreme Court election, Koschnick tossed forth some campaign literature that purported to show Chief Justice Abrahamson "voting in favor of criminal defendants" 60% of the time, whereas Justice Roggensack came in at 17%.

(The embattled Michael Gableman scored a 0%, thus far fulfilling his own promise to be law enforcement's "ally" in the "war on crime," a perfectly appropriate role for any self-respecting appellate judge.)

The figures, according to Judge Koschnick, were supposed to demonstrate Shirley Abrahamson's "liberal activism" and her EXTREME AGENDA (those are Koschnick's all-caps), even though 60% is considerably closer to the arithmetic median than is 17%.

Barring any vacancies* in the meantime, Justice Roggensack is the next high court judge up for reelection in 2013. Justice David Prosser (28% pro-criminal) is next, in 2011. (Thanks, Brett.)

* E.g., Gableman's.

What do you know, but it was Patrick Roggensack!

Calumniates the justifiably notorious Journal Communications, Inc. calumnist Patrick McIlheran:

[T]he union ... got a judge — what do you know, but it was Marilyn Sumi!

First of all, it's Maryann Sumi, but I guess you can't really blame the award-winning journalist Patagonia McIlheran, as Judge Sumi's not really been in the news much lately. Evidently Patrice McIlheran finds it comical that Judge Sumi was presiding. He doesn't give any reason why; he doesn't need to. As per usual, he's pandering to his little audience of ill-informed wing-nuts. Here's something else for them.

Supreme Court Justice Patience Roggensack — who comprises that court's hard-right conservative bloc together with Justices Ziegler and Gableman and more often than not Justice David Prosser — was once a judge on the District IV Court of Appeals, which presides over Dane County, which is where Judge Maryann Sumi sits. In that capacity then-Judge Roggensack heard 13 appeals of Judge Sumi's decisions.

Roggensack affirmed 11 of them, affirmed in part and reversed in part one of them, and reversed the one other. The reversal in part had to do with that portion of Judge Sumi's domestic restraining order prohibiting a stalkerish man from possessing a firearm.

However it was pure clerical, and not judicial, error:

It appears from the trial court's statements from the bench that it also found the evidence insufficient on this point, and that the firearm prohibition box was checked on the final written order by mistake. — Per curiam [by the court]

In other words, Judge Maryann Sumi was correctly non-reversible in her judicial findings, but somebody ticked the wrong box on a form.*

In her lone reversal of Judge Sumi, then-Judge Roggensack concluded that while the information provided to a defendant by an arresting officer "created some confusion," it was not erroneous information, and thus Judge Sumi had erred in determining that the defendant's demand for a blood test instead of a breath test was reasonable.

And whenever reasonableness is an issue on appeal, it's a close call.

You know that saying, "reasonable minds can disagree."

So just don't expect to be informed by the award-winning Journal Communications, Inc. journalist Patricio McIlheran that Judge Sumi was affirmed 12 out of 13 times by the most conservative justice on the State Supreme Court, as that would explode his and his disciples' disturbed political fantasies. However you will hear it here, and not through Journal Communications, Inc., which doesn't do corrections.

But thanks for all you do do, JRN.

* Not quite as erroneous as a "journalist" calling a Maryann "Marilyn."

Prosser pal wrangles free from Prosser chokehold

Concludes Wisconsin Supreme Court Justice Patience Roggensack:

I conclude that the Rule of Necessity cannot trump the mandatory directive of the legislature.

So whatever happened to the mandatory directive of the legislature to the chief judge of the court of appeals to appoint a three-judge panel?

Same thing as happened to the mandatory directive of the legislature that under no circumstances is less than two hours notice to be given of a public meeting of the legislature, I suppose: it was duly ignored.

Continues Justice Roggensack:

Statutory interpretation begins with the words chosen by the legislature in order to determine the meaning of the statute.

Yes, and let's look at some words chosen by the legislature:

A judicial conduct ... panel shall consist of either 3 court of appeals judges or 2 court of appeals judges and one reserve judge. Each judge may be selected from any court of appeals district including the potential selection of all judges from the same district. The chief judge of the court of appeals shall select the judges and designate which shall be presiding judge.

Why hasn't the chief judge done so? We are told — continually by the Milwaukee Journal-Sentinel — that the chief judge is waiting for the Supreme Court's "order" to him to do so. That alleged requirement is pure fantasy. If Justice Roggensack is recusing herself from Justice Prosser's ethics case as the first step to prevent the Supreme Court quorum allegedly required to order the chief judge to appoint a judicial conduct panel, what we're witnessing is the biggest legal travesty since Roggensack and her "conservative" colleagues last June invented a power not authorized by the State constitution in order to protect their fellow Republicans from the consequences of the Republican-controlled legislature's facially illegal activities in passing their union-busting Act 10.

And the State's biggest newspaper is helping enable this farce.

In Wisconsin, it's hard to say who's in contempt

Bit of the old in out in out of contempt

The black letter law says:

Each house may punish as a contempt, by imprisonment . . . for one or more of the following offenses: . . . prevent[ing a] member from voting.

— Wisconsin Statute § 13.26

A petulant Republican State senator says:

[A]ll 14 Democrat [sic] senators are still in contempt of the Senate. Therefore, when taking roll call votes on amendments and bills during executive sessions, Senate Democrats' votes will not be reflected in the Records of Committee Proceedings or the Senate Journal. They are free to attend hearings, listen to testimony, debate legislation, introduce amendments, and cast votes to signal their support/opposition, but those votes will not count, and will not be recorded.

— Sen. Scott Fitzgerald

A Wisconsin Supreme Court justice says:

[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. Protecting the First Amendment rights of all voters to cast votes that could not later be cancelled by the acts of others was a primary concern of the court in the rule that was enacted.

— Justice Patience Roggensack

Roggensack was referring to a rule governing the recusal of judges in cases, but the fundamental constitutional principle is the same and applies equally to Fitzgerald's Diktat. She meant that when a judge is excluded "by the acts of others" — as opposed to of their own volition — from hearing a case without what in Roggensack's view is good cause, the voters' First Amendment rights of speech and association are abridged, in that their elected representative judge is silenced.

And a majority of the court — the so-called conservative bloc — concurred with Justice Roggensack's own vote in enacting the rule.

Strictly speaking, Scott Fitzgerald isn't preventing the 14 Democrats from voting; he's letting them vote. He's just refusing to count their votes, an "act of others" which is little different from preventing their votes, if "voting" is to have any meaning at all in § 13.26.

While each branch of government's self-regulation is to some extent immune from the scrutiny of any other branch,* none of the branches may violate the 14th Amendment — it makes the First Amendment binding upon the States — which regulates the operation of all three.

In other words, it's one thing to be found in contempt (and "disorderly behaving") according to some application of Robert's Rules of Order to a political squabble within the legislature, but it's quite a different thing for a legislative leader to be contemptuous of the Constitution.

And while the Wisconsin constitution empowers Fitzgerald and his conservative Republican allies to mete punishment against their colleagues, no constitution empowers them to punish citizen voters.

On the other hand, Fitz's noise is sweet music to recall organizers.

* And in some instances even immune from itself, where the statutes expressly authorize their own subjection to parliamentary rules.

Gableman: Over the rainbow and out to lunch

Last Tuesday during his debate with Wisconsin Supreme Court Justice Louis Butler, Burnett County Judge Michael Gableman let fly this startling little shot across the bow:

[Butler] has a substantial and consistent history of legislating from the bench and we don't have too look far or long to find a series of cases that reflect that. I think what he said here today sounded very good, but in addition to all these longstanding case precedents he cited, I remember reading one case where he cited The Wizard of Oz and based decisions on social science studies that were manufactured at colleges and universities.

Gableman was apparently referring to a 2005 decision of the Wisconsin Supreme Court called State v. Dubose (.pdf; 63 pgs.).

Gableman's remark is instructive for a number of reasons, not the least of which is that it raises the question whether he even knows what he's talking about. As for 'citation,' it's a term of art, and it means something specific to lawyers. Aspirants to the Wisconsin Supreme Court, in my opinion, shouldn't play fast and loose with legal terms of art for the sake of mugging in front of the crowd.

It's not only misleading, it's dishonest, because one would expect Judge Gableman to fully understand what is meant by them.

First of all, Dubose was authored by Justice Patrick Crooks, not Butler. Second, Dubose embodies a very complicated due process analysis that involves revisiting a number of Wisconsin and U.S. Supreme Court cases in light of a considerable amount of more recently obtained empirical data having to do with the reliability of eyewitness evidence, and in particular evidence gathered through a certain type of police identification procedure. To put it mildly, Dubose does not lend itself to one-liner soundbites, especially the utterly nonsensical one offered by Gableman.

And one has to be especially careful reading Dubose because it contains three separate dissents, by Justices Wilcox, Prosser, and Roggensack. Each takes issue with the majority opinion for different reasons. It requires some serious work just to tease out the competing strands of analysis in Dubose, let alone portray it accurately for the layperson. To reduce it to, "He cited The Wizard of Oz" is, on a charitable reading, an act of negligence and, to my mind at least, raises a concern as to Gableman's suitability for the position he seeks.

While Butler joins Crooks's DuBose opinion in full, he writes separately only to shed light on a failure he detects in Justice Roggensack's dissent. To wit, Roggensack relies, at one point, on the very data she had derided as "disputed social science theory" only a few paragraphs previous. That's about the entire thrust of Butler's very brief concurring opinion. His apparent sin, to return to Gableman's dishonest characterization, was to criticize Roggensack's skepticism over the empirical data by saying this:

Unless, and until, we improve eyewitness identification procedures so that the likelihood of irreparable misidentification is significantly reduced, we can no longer proceed as though all is good in the Land of Oz.

That's it. A figure of speech, hardly the "citation" that Gableman would attempt to have us believe.

Incidentally, our good friend Daniel Suhr is also completely wrong (surprise) when he claims that Butler wrote to "especially defend" the majority's use of the empirical data. He was not "especially defending" the majority, he was "especially criticizing" one of the dissents for a glaring error of reasoning. It is notable, however, that Suhr also makes an issue of Butler's offhand reference to the "Land of Oz." It's almost as if Gableman was presented with Suhr's "Research Briefing" in preparation for his debate with Butler. D'ya think?

Suhr, by the way, can be more easily excused for his ineptitude than can Gableman, since Suhr hasn't sworn his lawyer's oath yet. (If there's a god in heaven, my humble prayer to her or him is that Daniel Suhr pulls Justice Butler for his swearing-in ceremony.)

Gableman's portrayal of empirical data as "manufactured" at colleges and universities is also quite telling, and he is kidding himself — and the Wisconsin electorate — if he thinks he'll just be able to laugh off relevant empirical studies prepared by the U.S. Department of Justice if and when he finds himself on the Supreme Court.

It's often said that there's a crock of gold at the end of the rainbow, but it appears that Judge Gableman is entertaining us to a crock of something else, something more fragrant than gold.

[Please visit the iT Butler/Gableman archive.]

A couple of questions for Justice Pat Roggensack

Why hasn't anybody asked Justice Pat Roggensack these questions? They seem obvious to me, and I don't even live in Wisconsin any more.

1) Justice Roggensack, you wrote in the Milwaukee Journal Sentinel:

"[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."

The First Amendment — as you know — originally applied only to Congress. Since then the United States Supreme Court has held, by selective incorporation, that certain elements of the Bill of Rights apply to State governments, but the right to vote has never been incorporated through the First Amendment.

So according to what constitutional theory or legal reasoning did you reach the conclusion that the right to vote in State judicial elections is guaranteed by the First Amendment?*

2) Many observers attribute the authorship of the per curiam order in Ozanne v. Fitzgerald to you, Justice Roggensack. In that order the court devised what it called "supervisory/original jurisdiction."

a) How could the court invoke its original jurisdiction when in fact it was the third court to review the particulars of the case?

b) As for the court's supervisory (more accurately, its superintending) jurisdiction, less than one month after its order in Ozanne, you joined a majority opinion of the court which declared:

"A supervisory writ is an extraordinary remedy to prevent a court from refusing to perform, or from violating, its plain duty."

This seems like a clear directive, and provides the criteria that a court must find are satisfied before granting this "extraordinary remedy."

But there is neither any discussion — nor even a mention — in the court's Ozanne v. Fitzgerald order of Dane County Circuit Court Judge Maryann Sumi's having refused to perform her plain duty, nor is there any discussion or mention of Judge Sumi's having violated her plain duty.

So how do you square your July 14, 2011 directive with Ozanne?

It seems the citizens are lacking an important chain in your reasoning.

* There is no constitutional right to vote for federal judges.

WMC authors the Wisconsin judicial ethics rules

Excerpted from testimony before the Wisconsin Supreme Court, with emphases supplied:

The rule in [Caperton v. Massey] was that due process requires a judge to recuse where the judge's impartiality is in question. And in that case, the rule there is that a court must take into account all of the facts and the circumstances surrounding — whether it's spending or a contribution — or whatever other facts are present that are challenging that judge's ability to be impartial.

— Counsel for Wisconsin Realtors Association, 10/29/09

As difficult as it may be to believe, the notorious business outfit Wisconsin Manufacturers & Commerce and the Wisconsin Realtors Association wrote three rules of judicial ethics that were ordered effective by four members of the Supreme Court yesterday.

The order came attached with some more of the court's "writings," this time featuring Justice Bradley squaring off against Justice Roggensack, the latter having helped formed the majority along with Justices Prosser, Ziegler, and Gableman ("the conservatives").

WMC contributed millions to the political campaigns of Justices Ziegler and Gableman, but Wisconsinites needn't pay any mind to the troubling perceptions created thereby, the majority teaches today.

One of the WMC/court's new rules is 60.06(7), which dictates that a judge is not required to stand aside from hearing a case "based solely on any endorsement or the judge's campaign committee's receipt of a lawful campaign contribution, including a campaign contribution from an individual or entity involved in the proceeding."

The other newly created rule is 60.04(8), which confers the same protection upon a judge when an "independent communication" (e.g., one of WMC's infamous issue advocacy advertisements) is produced by a party to the case, or where a party to the case contributed to the production costs of the "independent communication."

(The latter "individual[s] or entit[ies]" are more often than not operating behind a veil of anonymity anyway.)

Amended by the WMC/court is 60.06(4), which already had purportedly prohibited judges from personally soliciting campaign contributions, directing them instead to gathering up cash monies through a committee. Although: "A judge, candidate for judicial office, or judge-elect may serve on the committee but should avoid direct involvement with the committee's fundraising efforts." Emphasis added. It's one of those "aspirational" rules.

Significantly, the amendment allows a judge's fundraising committee (with whose activities a judge aspirationally "should" avoid direct involvement) to drum up cash from contributors "even though the contributor may be involved in a proceeding in which the judge, candidate for judicial office, or judge-elect is likely to participate."

The meaning and potential effect of the latter provision isn't entirely clear. As Justice Bradley (joined by Chief Justice Abrahamson and Justice Crooks, "the liberals") points out:

[U]nder the majority's new rules, which mark a substantial departure from our current practice, judges' campaign committees and perhaps someday even judges themselves will be able to ask for and receive contributions from litigants before the trial has begun and before the judge makes a decision in their case. . . .

Justice Prosser clarified at the January 21, 2010, open administrative conference that indeed the intent is to allow for the solicitation and receipt of a contribution from a litigant with a case currently pending before the judge.

Justice Roggensack, without a hint of irony, pronounced that "Justice Bradley's dissent is a political statement that will foster disrespect for and distrust of the Wisconsin Supreme Court as an institution."

Roggensack criticized Bradley for citing a number of newspaper editorials (nine of them, to be exact, all in substantial agreement) which expressed concern over the majority's move to adopt verbatim rules written by organized corporate interests, effectively "thumb[ing] their noses at the perception of connections between large campaign contributions and the court's integrity, objectivity and credibility," as the Milwaukee Journal-Sentinel had put it.

The majority appears to be largely unconcerned about those public perceptions, and moreover the majority appears unconcerned that those concerns even exist, let alone for those concerns' validity. Nevertheless, perceptions about the courts' objectivity play a substantive role in evaluating due process of law challenges.

A party to a lawsuit is placed in an uncomfortable position where the presiding judge's campaign committee (again, with which the judge "should" not — as opposed to "must" not — be involved) is actively soliciting cash money from the other party. Yet that is precisely a situation the majority's order contemplates and, seemingly, allows.

Justice Roggensack, somewhat inexplicably, claims the new and amended rules are grounded in the right to vote in elections.

But see the well (and rightly so) respected Michael B. Brennan:

Although the judiciary is elected in Wisconsin, it was never intended to directly carry out the wishes of the voters.

The court's remarkable order is available here (.pdf; 28 pgs.).

As usual, more later.

CFAF "deemed" criminally inept Part 9

Forge ahead we must, and forge ahead we shall.

41. State v. Armstrong 2002AP2979

Armstrong is another case that CFAF arbitrarily strikes from the list simply because the docket number doesn't contain the -CR suffix. This is odd, and not just for that reason. Because at the center of the case is an especially brutal rape and murder. The same brutal rape and murder, in fact, pursuant to which CFAF arguably committed defamation in another of CFAF's own television ads directed at Butler's record in deciding criminal cases!

That was the ad that was so blatantly biased, inflammatory, and arguably legally actionable that WBAY in Green Bay refused to run it until the defamatory language was removed and Madison's WISC refused to run it at all.

Yet once again, here we have CFAF, using this exact same case to wildly misrepresent Justice Butler's record and now demanding that Butler not be allowed to use precisely the same case to defend his record. The hypocrisy is breathtaking. The irony, of course, is that Butler openly acknowledges that he wrote for the majority to grant Armstrong a new trial (not to release him back onto the streets) in light of newly discovered DNA evidence that cast reasonable doubt as to whether the samples presented during the original trial belonged to Armstrong in the first place.

So Butler counts Armstrong "against" himself in reaching the percentage presented by his campaign. In the closely related honesty v. honesty calculus, Butler wins hands down and the so-called "Coalition for America's Families" would do well to take note, since the last time I checked, honesty was a fairly important consideration generally, its transmission and propagation among and between family members (and beyond) being something to be encouraged.

As for the threshold legal dispute between the majority and the dissenters, it was whether or not, as Justice Roggensack put it, a retrial using less constitutionally infirm evidence would have created a different outcome for Armstrong. Imagining herself deliberating in the place of a jury of 12, Roggensack concluded that it would not. Butler and the majority, on the other hand, considered it more prudent and careful not to do so, but rather allow a panel of citizens to make that call.

Burnett County conservative Republican Mike Gableman can rave and rant baselessly all he wants about Justice Butler's "consistent" record of placing his own personal views before those of the people of Wisconsin and its elected representatives, but he has no evidence in support of that claim, but there is considerable evidence against it, State v. Armstrong being a compelling example.

It's also another indisputable example of CFAF's miserable and dishonest little GOP games.

42. State v. Denis 2003AP384-CR

Denis is a somewhat puzzling case involving the waiver of therapist-client confidentiality among the parties arising from the repeated sexual assault of a three-year-old girl by her grandfather. Of all the 70-odd cases I have read for this series, Denis easily presents the most difficulty in terms of teasing out the pertinent facts from an extremely confusing record and applying them against the relevant law.

As a matter of fact I wouldn't at all be surprised if that is why the task fell to Justice Butler's prodigious analytical skills, and he wrote for a unanimous court to deny the defendant's challenge. CFAF agrees, probably because whatever was left of its alleged brain exploded after about the fourth paragraph of Butler's opinion, if it even got that far.

43. State v. Aufderhaar 2003AP2820-CR

Aufderhaar represents Jessica McBride's only triumph in her partisan attempts to not only attack Justice Butler's record but also his character and his professional integrity, so let's give credit where credit is due: McBride discovered a typo in the Butler campaign's list of 70 cases. [Cue momentary Purcellian fanfare.]

So thanks for that, at least, and I've corrected it. As for the court's disposition, it reversed the court of appeals affirmation of the circuit court's denial of Aufderhaar's motion to transfer his case from criminal court to juvenile court. Yes, attentive reader, that's right. Justice Roggensack's opinion for a unanimous court ordered the circuit court to dismiss the criminal charges against Aufderhaar, meaning the court's decision rendered the defendant no longer a criminal for the purposes of the law.

Yet both CFAF and McBride count this toward their labeling of Justice Butler as significantly "pro-criminal." Justice Butler, for his part, does no such thing, understanding far better than either CFAF or McBride not to engage in such risibly foolish pursuits, yet openly acknowledges that his disposition favored the defendant, along with the most "conservative" members of the court. Are either CFAF or McBride willing to tar Justice Roggensack and former Justice Wilcox "pro-criminal" pursuant to their decisions in Aufderhaar? Rhetorical question, obviously.

Elsewhere it's been suggested that Butler not include juvenile cases in order to defend himself against the falsely formulated and falsely launched attacks against his record, even where those attacks contain references to those very cases. Yet both CFAF and McBride, by applying the absurd and arbitrary methodology of only counting cases where the docket number includes the -CR suffix, have counted precisely one of those cases and furthermore one where a unanimous court explicitly rules the defendant is not a "criminal."

There are a number of possible ways that CFAF and McBride could have erred in their "analyses" of Justice Butler's record, and it seems to me that CFAF and McBride have somehow found a way to commit every single one of them.

Yet they soldier on, and others continue to defend their methodology. I flatter myself in maintaining that it's a good thing for my devoted readers — few as they may be — that all of this doesn't leave me completely speechless, as it would many, many others, I am certain.

44. State v. Ernst 2003AP1728-CR

CFAF "deems w/ Criminal." Such a designation is manifestly unfair on its face for the following reasons and further proof that whoever is reading these cases on the anti-Butler forces' side hasn't the slightest clue what they're looking at.

Ernst presents a mixed bag of very complex constitutional and procedural questions. There is no way I am going to enumerate and explain them all at this stage of the game. Suffice to say that Ernst was awarded very little by the unanimous court and what he did win had upon it placed severe restrictions by the court. On the other hand, and on balance, the State won considerably more. From the opinion:

[W]e hold that the State may call and elicit testimony from the defendant at an evidentiary hearing in an attempt to meet its burden and, in turn, the defendant may not raise his or her Fifth Amendment privilege against testifying. Finally, we conclude that the defendant's refusal to testify under these circumstances allows a circuit court reasonably to infer that the State has satisfied its burden of showing a knowing, intelligent, and voluntary waiver of the right to counsel.

As I said, on balance, the State won in the Supreme Court and it's a safe assumption this is why the Butler campaign designated the case as it did.

However, in the interests of fairness, and because it is entirely unfair to accede to CFAF's laughably uninformed demands, I'll consider this a wash, and designate the same value in each of the "pro-defendant" and "pro-State" columns of my master spreadsheet. Nevertheless, I do this reluctantly, and I know that I could make a more than persuasive case that, on balance, the State won this case.

In the meantime I challenge anyone to dispute the foregoing, and am completely prepared to defend it in detail. But there's no way I'm going to do it here right now, because I'd need to get paid to do that. In the meantime let it stand as yet another example of CFAF's utterly disingenuous and downright incompetent project.

45. State v. Jerrell 2002AP3423

Jerrell is the next case CFAF strikes from the list because it isn't designated with the -CR suffix. Tough. Jerrell, despite being a juvenile case, is also another that Butler's detractors have used repeatedly to attack his record in dealing with offenders, including by Professor Esenberg, who discusses it at some length in his Federalist Society paper, "A Court Unbound?" And let's not forget that "A Court Unbound" was and is the title and theme of Wisconsin Manufacturers & Commerce's well-funded series of essentially groundless attacks against Justice Butler, which includes the profoundly anti-American assertion that the Sixth Amendment of the U.S. Constitution is a "needless technicality."

Once again, how dishonest can you get, attacking a sitting State Supreme Court Justice on his record by citing to a hand-selected series of decisions and then demanding that he not be allowed to cite to those exact same cases in defense of his record. Such a project should be included in the Oxford Dictionary of the English Language as an example of unfairness. It stays in the calculation for that reason alone.

46. State v. Bush 2003AP2306

Still another attempt by CFAF to suppress Justice Butler's right to defend himself against CFAF and others' scurrilous campaign of character assassination.

"Not classified as criminal by the court"! declares CFAF and arbitrarily tosses it from the list. And, once again, it doesn't matter. Bush deals with the circumstances of the defendant's Chapter 980 proceedings related to his status as a dangerous offender, proceedings in which Bush never would have found himself had he not committed and been convicted of a number of sexual assaults.

I repeat, because this is crucial, that CFAF and others are attacking Butler's record in dealing with criminal offenders generally. It wasn't until very recently that CFAF and Jessica McBride came up with the ruse of including only those cases bearing the -CR suffix. The ruse came about after CFAF, and immediately thereafter McBride, were challenged to defend the ridiculous and unsupportable claim that Justice Butler "sides with criminals 60% of the time." CFAF originally invented the figure out of thin air, and now they will do anything to try and justify it. But they can't. So they resort to these obvious and desperately cheap tactics.

Even more ridiculous is that both CFAF and McBride are resting this demand on a legal technicality when, simultaneously, they are proving themselves completely incapable of comprehending any of the true legal technicalities that present themselves in the cases. In fact, it's obvious to me that they haven't even read many, if not most, of these cases. And some people wonder why I think their project is a joke, and that McBride is a hack. That wonderment in and of itself is a bit of a joke.

What makes all of the foregoing even more pathetic is that Bush, which Butler himself wrote for a unanimous court, is representative of the most "anti-criminal" disposition that one could hope to find, which I have already discussed elsewhere.

Yet, the farce continues, to an unforgivably shameless degree. It's nothing short of outrageous.

47. State v. Smith 2003AP1698-CR

As if any additional evidence of CFAF's demonstrable — and, I claim, demonstrated — incompetence is required, here it is. Smith is a near-unanimous opinion, authored by Justice Roggensack, in which the defendant's two convictions were reinstated after the court of appeals had reversed the circuit court's initial judgment of conviction.

Justice Butler concurred in part and dissented in part. The upshot of Butler's dissent is that he would have ordered a new trial, after writing yet another of his thoughtful and incisive constitutional analyses. Of course the dispositional, legal effect of Butler's dissent was practically zilch, since he wrote alone. Nevertheless, Butler correctly and accurately counted Smith "against" himself.

CFAF, hilariously, counts it in Butler's "favor." Earlier I had mentioned that CFAF never disputes Butler when he counts cases "against" himself. I was about to correct myself on that account, but it's so obvious that CFAF simply committed yet another incompetent blunder, and that its mistake clearly didn't result from any attempt at actually engaging the reasoning presented in the opinions themselves.

I know it gets tricky when the circuit court does something, the court of appeals reverses, and then the Supreme Court reverses that. It tends to get hard to follow, especially even for the brilliant legal minds at CFAF, apparently.

Obviously, and given CFAF's own record in all of this, it would have jumped all over the opportunity to "agree" with Justice Butler's case designation for Smith. I understand that there are two or three "Smiths" on the list of cases, but they also contain little numbers to help you differentiate between each "Smith" and the others. CFAF was only looking for the letters, however, the letters -CR, which is independently fatuous for a number of reasons described supra and infra and indeed everywhere-a and throughout-a.

Never fear, however, I say to the good "family values" people at CFAF. I caught your laughable blunder, and the convictions remain in the correct column, where Justice Butler had put them in the first place.

No need to thank me, CFAF, but you're very welcome nonetheless.

48. State v. Anson 2003AP1444-CR

The Supreme Court, in a unanimous opinion authored by "traditionalist" hero former Justice Jon P. Wilcox, upholds the court of appeals reversal of Anson's judgment of conviction for second-degree sexual assault of a child. Butler joins Wilcox's opinion in full. No Gableman television ads appear depicting Justice Wilcox as an enthusiastic supporter of child molesters.

CFAF, in yet another failed effort to regain even a shred of credibility, let along establish any credibility in the first place, does not dispute.

49. State v. Manuel 2003AP113-CR

Justice Butler, writing for a unanimous court affirming a decision of the court of appeals, upholds Manuel's six convictions, including one for first-degree homicide. CFAF, asleep at the switch again evidently, does not dispute.

50. State v. Stenklyft 2003AP1533-CR

I have been threatening to discuss State v. Stenklyft for several weeks, and I will, as soon as I can. In fact I have nearly completed a lengthy post dealing only with this tremendously important case, which involves fundamental constitutional notions of the judicial power and its separation from the other two branches of government. Therefore I am more than prepared to defend the following claim: The Gableman campaign's own one-liner characterization of Stenklyft is a deliberately misleading farce of epic proportion.

Moreover, CFAF's taking issue with Butler's categorization of Stenklyft is, by extension to the foregoing, laughable. It stays exactly where it is on Butler's list.

Need I continue? Obviously not. But I will anyway. Opportunities for definitive smackdowns of this magnitude are few and far between, and this one is a distinct and hilarious pleasure.

ttfn

To part 10 ...

Roggensack to complement law enforcement

It's been some time but I'm certain I recall the usual suspects on the political right in Wisconsin castigating that State's Chief Justice, Shirley Abrahamson, for presenting herself as an ally of law enforcement. In the course of winning 69 of 72 counties in 2009, the CJ ran an ad featuring Dane County Sheriff Dave Mahoney's enthusiastic support. Above is a detail of Supreme Court Justice Patience Roggensack's Facebook cover photo which, according to the proverb, tells a thousand words. And it's no different than if Roggensack were depicted shaking hands with an insurance company or manufacturing concern CEO. We've all seen the case captions for the controversies that reach the Wisconsin Supreme Court: State v. Brown, State v. Lopez, etc. That large man with the prominent pistol, warmly embracing the smiling judge inside a court of law, represents "State."

I don't see Lopez around, nor, naturally, the hypocrites on the right.

Wisconsin high court takes a four-bambini lunch

Video link to the portion of yesterday's Wisconsin Supreme Court open administrative conference which Justices Prosser, Roggensack, Ziegler, and Gableman* refused to attend. Reportedly the quartet objected to an open discussion of Justice Roggensack's proposal to do away with open discussions. The remaining three justices discuss why Roggensack et al's reasoning is fatuous. Mike Gableman had complained that the open conferences had no parallels in other States — a false claim, evidently** — and Justice Ziegler was concerned that the open conferences contributed to the diminished public esteem in which the court is held.

Which makes sense because when the CJ has to send the marshal to solicit the votes of four justices who are pouting in their chambers like spoiled children, public esteem for the institution is greatly augmented.

* The "conservatives." Just call them Republicans and get it over with.

** False claims being what Gableman is most famous for and indeed helped Gableman to a Supreme Court chambers in which to now pout.

Shark for the defense, part 2

Prof. Rick Esenberg has released the latest in what is currently a four-part series entitled, "Setting the record straight." I suspect there may be some straightening of the record contained somewhere in these missives, but there's also a not inconsiderable amount of warping it.

To wit, the following, in response to my "Over the rainbow and out to lunch" of Feb. 2. "Although," as Esenberg puts it, "more for finding a point of departure than to offer rebuttal." But he can't resist attempting a few shark bites here and there, italicized below, so let's at least "set the record straight" on those.

"[I]n addition to all these longstanding case precedents [Butler] cited, I remember reading one case where he cited The Wizard of Oz and based decisions on social science studies that were manufactured at colleges and universities." — Judge Michael Gableman

[W]hile I doubt that there was any nefarious intent, it is a bit of a malapropism here.

This is one of the reasons I enjoy Esenberg's blog: for the belly laughs. Indeed, this may well be one of the cleverest sentences he's ever constructed. You have to admire the choice of words, "nefarious" vs. "malapropism." On the one hand, the most extreme interpretation possible (very wicked, evil, immoral, sinful, vicious) and on the other, a mere jovial slip of the tongue, and only "a bit of" one, at that.

Esenberg has been following politics — and been a lawyer — long enough to get what Gableman was saying. But he deserves credit for the hilarious dichotomy he offers.

Then Esenberg casually dismisses "manufactured" as "a bit of populist flourish." As I'm fond of saying, I was born at night, but not last night. And I understand conservative-speak as well as anyone: manufactured at colleges and universities = fabricated from whole cloth by leftist academics. We know the code too. No wonder Esenberg wants to set these statements of Gableman's aside! Good for him on that account, at least.

IT emphasizes how complicated DuBose is and we hear that in judicial elections. You can't judge a decision, we are told, unless you read the briefs, heard the argument and know enough law to place it in context. So lay off.

And this is one of the reasons I sometimes don't enjoy Esenberg's blog, because that was hardly my conclusion at all. I said that complexity often doesn't lend itself to sound bites and in particular, ridiculous and fact-averse sound bites such as the example I gave. I never suggested that anybody ought to "lay off."

As a matter of fact, I'm grateful for some of the wild claims issuing from the Gableman campaign and its supporters; it's been entertaining making fun of them. I'm looking forward to their continuation, and there's little question in my mind that there will be many, many more to come.

By way of an analogy, it's sometimes said that people like me, who don't believe in God, actually need God more than people who do believe in God, because we like to talk about God so much, if only for entertainment and arguendo purposes, whereas people who do believe in God are less inclined to investigate the God-details. There's some truth to that!

In fact, suggesting that a critic has manufactured an issue because there is more to it than the limitations of campaign spots will allow, is, in its own way, also misleading.

Now I'm being misleading by describing how misleading it is for Gableman to suggest Butler relied on "The Wizard of Oz" to reach a disposition in an opinion he didn't even write? Esenberg is too clever by half, I must say. Except this particular manufacture was deployed during a 75-minute debate without any such limitations. Will it turn up in a campaign spot? We'll see, I guess. I hope so, for the reasons set forth above.

This is why it was fair for Daniel Suhr to say that Justice Butler "especially defended" use of the studies. He was responding to Justice Roggensack's criticism of their use.

Well, not exactly. More specifically, he was responding to the self-undermining logical disconnect apparent in Roggensack's dissent, in that on the one hand she was using the studies in support of an argument while simultaneously dismissing them as "disputed social science theory."

In other words, 'You can't have it both ways,' is pretty much all he was saying. If you're going to rely on a set of statistical findings, then you can't dismiss the same data as "disputed theory." Do they support your argument, or not. That's actually a criticism of the use Roggensack put to the studies, not a defense. Criticism and defense, they're sorta at the opposite ends of a continuum, kinda like "nefarious" and "malapropism."

But I suppose Suhr can say anything he wants, and has.

Finally, there is this comment under Esenberg's post, from the dependable fan of strawmannery and red herringing, Dad29:

"Complexity" and "nuance" are generally used to derogate arguments from Common Sense.

I am reminded of a pertinent quotation from Sydney Smith: "He not only overflowed with learning, but stood in the slop."

Which just goes to show that no matter how effectively is the lie put to the Gableman campaign's clumsy efforts at negative campaigning, they will nevertheless find a receptive audience of eager dupes.

If there's a better argument against the popular election of State Supreme Court justices than the mere existence of such willfully gullible electors, it eludes me at the moment.

[Please visit the iT Butler/Gableman archive.]

Gableman bounced back to Judicial Commission

Upping the ante, three of six justices want a defamation trial

Sadly, the approach offered in defense of the advertisement at issue here would approach the Code of Judicial Conduct in the manner of wordplay and linguistic gamesmanship, rather than as an embodiment of substantive ethical standards.

— Opinion of Abrahamson, Bradley, and Crooks

To the surprise of probably no one, the Wisconsin Supreme Court has reached an "impasse" in the matter of Michael Gableman (depicted at left). Three justices, Prosser, Roggensack, and Ziegler, said last night they "anticipate" that the Wisconsin Judicial Commission will formally abandon its ethics complaint against Gableman (significant to the court's opinions, a complaint that Gableman himself has not been successful in having dismissed).

[eta: Gableman is reportedly dancing a victory gavotte-by-proxy.]

The other three justices, Chief Justice Abrahamson, Bradley, and Crooks, gave "directions" to the Commission to request a trial by jury to determine whether Gableman's scurrilous 2008 teevee ad deliberately and maliciously misrepresented facts about then-sitting Wisconsin Supreme Court Justice Louis B. Butler.

It's not immediately clear whether half of an equally divided court (Gableman, titularly the seventh member, is not participating) has any authority to compel those directions in this case. Nor is it clear, even if half the court does possess that authority, whether the Judicial Commission long since relinquished its opportunity to exercise its own authority to request a jury's factual review.

According to the court's general provisions in the Wisconsin statutes, the Commission may request a jury hearing in a matter, but it has to do so before it files a formal complaint, which it already did in October, 2008.

The latter requirement, it seems to me, presumes a resolution once the Commission advances its case, something that has yet to be achieved even after its reaching through the State Supreme Court. But the court yesterday was unanimous in its view that the next move, whatever it might be, belongs to the Judicial Commission.

[eta: Learned counsel Rob Henak suggests it move into Club Fed.]

The Commission in 2008 chose instead to present its case not to a jury but before a three-judge panel. That presentation happened last September in Waukesha County. Two months later the panel handed up its recommendation, which the Supreme Court is not obliged to follow. The panel recommended that the complaint against Gableman be dismissed, but two judges also found that Gableman had violated a different provision of the code of judicial ethics.

The third panelist, Ralph Adam Fine, disagreed substantially and found Gableman had by his deeds committed the more serious, punishable violation alleged by the Commission, but that the ethics rule itself was an unconstitutional abridgment of speech and thus not enforceable against Gableman.

As I said at the time, Judge Fine's separate opinion was the most significant. That turns out to have been an accurate prediction.

Judge Fine was the only one of the panelists who rightly found ludicrous Gableman's defense that the statement clearly professed in his ad, that Butler's professional obligations as defense counsel contributed to causing the rape of an 11-year-old mentally disabled girl, could be overlooked in favor of isolating an audiovisual ad's script, breaking that script into individual, brief English sentences and, moreover, ignoring the meaningful connections between those.

It's a defense that Prosser, Roggensack, and Ziegler succumbed to, and one that Abrahamson, Bradley, and Crooks rejected entirely.

The latter three justices determined that Gableman's statement — "statement" is a crucial term of legal art in this case whose meaning as applied to the ad has never been sufficiently explored, imho — regarding Butler's causal connection with the rape (the others coyly attribute the message to "then-Judge Gableman's campaign committee") was arguably and provably defamation uttered in malice and as such is not availing of First Amendment protection.

Those justices emphasized — as has been repeatedly emphasized at this here blog — Gableman's own affirmations that he had made himself thoroughly familiar with all of the substantive and procedural circumstances of Butler's representation as an appellate attorney for Reuben Lee Mitchell and therefore had to have known that his — not his "campaign committee's" — teevee ad conveyed a false statement of fact. (Or, as the Commission puts it, Gableman lied.)

The three also tossed in a factor contributing to their determination that hadn't been addressed until, ironically, Gableman's lawyer James Bopp of Indiana brought it up during the proceedings. This has to do with the case citations that appear as text at the bottom of the teevee ad which, when investigated as Mr. Bopp had suggested, deviously point away from the fact that Butler's appeal on his client's behalf was ultimately rejected by the Wisconsin Supreme Court.

More later. Obviously there's much to say about these opinions.

Opinion of Prosser, Roggensack, and Ziegler
Opinion of Abrahamson, Bradley, and Crooks

CFAF "deemed" criminally inept: Part 8

First, don't miss the very latest installment of

DA Mike Gableman: Real Life Adventures in Crimefighting

Now, nine more cases or, "Lordy, lordy, look who's a Moran."

[Psst. For a secret message to CFAF et al, click me]

32. State v. Booker 2004AP1435-CR

Two appealed convictions for showing porn videos to three girls ages 12, 13, and 14 both upheld by a unanimous opinion from Justice Roggensack, another of the court's most "conservative" judges. The "liberal" Chief Justice concurs but Justice Butler doesn't join her opinion, he only joins Roggensack's. CFAF is forced to agree.

33. State v. Brockdorf 2004AP1519-CR

Butler dissented, and joined another dissent by Justice Crooks, along with "traditionalist" Justice Prosser, in a case involving the investigation into a Milwaukee police officer, Brockdorf, and her statements pursuant to a shoplifting arrest that allegedly got a little rough 'n' tumble.

Even more troubling is that the heist was from Kohl's. I loves me some Kohl's. I've picked up a few nice IZOD rayon dress shirts at Kohl's for like 12 bucks. What kind of a shoplifter steals from Kohl's, when all he needs to do is rummage through the 70%-off rack to find such a deal? A lazy one, that's what! He probably deserved a good whack on the side of the head.

Anyway, Butler agreed with the police officer Vanessa Brockdorf that her statements made during an investigation were compelled, and should have been suppressed for that reason. Butler went on to set down a couple of paragraphs on the subject of trust between the public and the police, and how these investigations into rough play by the cops need to be especially careful and rigorous. It's a fair point, especially in this town.

Nevertheless, because he is honest, Butler counts this case "against" himself, despite the fact that the party Butler sides with is an actual law enforcement officer, yet another example of how these rulings contain a number of subtleties that Prof. Esenberg's suggested methodology simply can't take into consideration.

And, because CFAF doesn't challenge a single instance of Butler siding with a defendant, it's happy to agree with this one too.

34. State v. Smith 2004AP2035-CR
35. State v. Tiepelman 2004AP914-CR

And two more. In Smith, Butler and Prosser join the Chief Justice's dissent where the majority upheld a drunk driving conviction in the face of Smith's challenge against a juror where Smith alleged a conflict because the juror worked for the Milwaukee County district attorney's office. Coincidentally, Smith addresses the very question of objective vs. subjective tests that I discussed below.

Butler counts this case "correctly" "against" himself and CFAF rushes to agree.

In Tiepelman, Justice Butler again voted with the court's most "conservative" members to reverse a criminal conviction. Naturally, CFAF agrees, but you'll never hear CFAF or Jessica McBride refer to either Justices Prosser or Wilcox as "pro-criminal" on any particular decision. Ever. Such is cheap partisan hackery.

36. State v. Fonte 2003AP2097-CR

In Fonte, Butler voted with a unanimous court (minus Justice Crooks, who did not participate) to uphold — after the court of appeals reversed — Fonte's conviction for homicide by intoxicated use of a boat. CFAF can't not agree.

37. State v. Dubose 2003AP1690-CR
38. State v. Knapp 2000AP2590-CR

Two cases that have been already discussed in great detail here and elsewhere that there is no need to rehearse at this point, suffice to say that Butler voted to reverse a conviction in Dubose, and wrote to exclude evidence in Knapp where that evidence was the product of a deliberate withholding of the constitutionally guaranteed Miranda warning.

Contrary to uninformed opinion, there was anything but clear guidance from the U.S. Supreme Court in Knapp, and the two cases that local radio howler/monkey Charlie Sykes says Butler "ignored," Butler actually spent 46 pages of the opinion addressing. Because, you know, if you write anything less than 47 pages discussing two U.S. Supreme Court decisions in excruciating detail, Sykes gets to count that as "ignoring."

I pause to reflect one more time — Why does anyone take any of these right-wing bozos seriously at all, with outright lies like that?

In any event, Butler, gentleman that he is, nevertheless counts both cases "against" himself in deference to the stupid GOP games of CFAF, and CFAF certainly isn't going to raise any question against that.

Another pause to reflect. How is it that CFAF can agree with Butler's list in so many instances, and in every single instance where CFAF disagrees with Butler's list, CFAF is dead wrong, yet CFAF's figure is nearly 40 percentage points away from the truth?

Because, dear reader, CFAF originally extracted the number from its balloon knot pucker hole, that's why, and its pathetic attempt to justify it in the meantime is a stone flat-out Opéra Bouffe of lies, screw-ups, and general boneheadedness.

39. State v. Love 2003AP2255

This is a good one. CFAF just arbitrarily removes this from the list, saying, "Not Classified Criminal By The Court." Notice the docket number beside the case name doesn't contain the holy -CR suffix. Yes, and? Again, did CFAF even care to read State v. Love? Because it is a criminal case. Last I checked, robbery at gunpoint was a crime. And ineffective assistance of counsel is often a legitimate means to attempt challenging a conviction. And postconviction motions are a regular component of criminal cases. Even CFAF could tell if they looked, because it says postconviction motion. There are no convictions in any types of cases other than criminal cases.

Hmm, let's see, what other features are there of criminal proceedings. Jury trials? Check. Evidentiary hearings? Check. Reversals of the court of appeals that remand a case back to the circuit court for a hearing on the newly discovered evidence? Check. All of which figure prominently in State v. Love. In fact, the latter is the disposition: The defendant, says Justice Butler, writing for the majority, at least deserves a hearing — but that's all, just a hearing — on this newly discovered evidence. So ordered.

Now I'll admit, I can't tell you why the case number doesn't contain the -CR suffix. Maybe it has something to do with a reference to the court of appeals "summary disposition" in the very first sentence. Is that a term of art that alerted somebody working in the clerk of courts' office to file the case a certain way? I have no idea, to be honest. Maybe somebody can fill me in.

But, here's the deal. IT DOESN'T MATTER. Butler is being attacked, baselessly, on his criminal record, and now here are these buffoons insisting that Butler cannot defend himself against their attacks by making reference to the very cases they are using to attack him.

As Larry David said to Richard Lewis, "What are you, nuts?" Or, as the kids say, "Teh stupidz! It Burns!!!11!"

Oh well, as Jessica McBride says, even if you disagree with this one case it doesn't affect the overall number. No biggie; Tee Hee!

Huh.

Well how about if you disagree — and demonstrate why, with proof — with about 100% of CFAF's idiotically incorrect classifications, how does that affect the overall number?

Lordy, lordy almighty god help us all. Wonder why I'm amazed that an actual professor of law continues to laud McBride's work, which obtained the identical result as did CFAF's? There's another reason. I've lost count of those reasons at this point.

40. State v. Moran 2003AP561-CR

Another classic CFAF boner.

CFAF disputes this one: "deems w/ Criminal." Yes, it's true, you, the people, through your elected representatives in the State legislature, are "criminals." Okay, okay, wise guy. Never mind Glenn Grothman then.

Moran is a unanimous decision authored by Justice Prosser with two concurrences by Wilcox and Roggensack dealing with a postsentencing motion to obtain DNA evidence under a due process of law theory. The unanimous court addresses Moran's motion in light of a number of statutes passed by the legislature seven years after the events leading to the defendant's conviction.

In short, the unanimous court is directly following the commands of the legislature in granting the motion. Crimefighting superhero Mike Gableman, speaking in that strange half sing-song half vacuous-GOP-talking-point-reciting voice, constantly accuses Butler of "legislating from the bench" and imposing his personal preferences on the will of the people and blah blah blah. Has Gableman ever supported any of this? Of course not. Can it be easily rebutted, with examples? Of course it can. Just read State v. Moran.

As for the result in Moran itself, certainly even a conservative Republican would appreciate having the opportunity to present new evidence that came to light not only through recent technology but through more recently passed legislation by the peoples' representatives? Or do conservative Republicans really place such absolute blind faith in the government and its police force and prosecutors? Because if they do, then conservative Republicans have sure changed their attitudes toward the government since I was just a little clump of DNA meself.

ttfn

To part 9 ...

"I'm aware of a story involving another justice."

In light of our friend Mike Gableman's repeated claims that Wisconsin Supreme Court Justice Ann Walsh Bradley had "hit" or "struck" him on the head on September 18, 2009, let's revisit a portion of Justice David Prosser's testimony to Dane County Sheriff's Office detectives on July 8, 2011. At 1:30:28, one of the detectives begins asking Prosser whether he was aware of any earlier instances of Justice Bradley "doing something to somebody else in the past," having "had physical contact with somebody." At 1:31:25, the detective gets down to brass tacks:

Detective: Had you witnessed Justice Bradley ever charge at anybody like this in the past?

Prosser: I have never seen her charge anybody once.

Detective: Okay. Is there a reason, uh, are you aware that anything like that's happened? Before [June 13, 2011]?

Prosser: Yes.

Detective: You're aware of an incident specific with Justice Bradley ...

Prosser: Yes.

Detective: ... that she has charged other people. Anything that you've witnessed?

Prosser: Yes.

Detective: Okay. Did that just contradict what you just earlier said? Because I thought you just said you never witnessed anything. Is that correct or am I a little off on that?

Other detective: You're aware of it?

Prosser: [Sighs] I ... [chuckles]. Okay, I'm aware of a story involving another justice. I didn't see that.

Detective: Okay.

Now, recall that Mike Gableman told the detectives on July 5, 2011, that Justice Bradley had "hit" him on the back of the head on September 18, 2008 and that he, Gableman, had never told anyone about this alleged incident prior to his July 5, 2011 interview with Dane County detectives.

On August 31, 2011, reporter Dee Hall of the Wisconsin State Journal discovered that the court had not convened any meetings on September 18, 2008. On September 1, 2011, Gableman released a statement claiming that it was September 18, 2009 that Justice Bradley "struck" him on the back of the head and that all seven justices were present.

Justice Bradley, Chief Justice Abrahamson, and Justice Crooks all affirmatively denied that any such head-striking incident ever took place. On July 18, 2011, Justice Ziegler told the detectives that Gableman had "recently" told her about the alleged head-striking incident but that she had no details of the alleged incident, nor could she be specific about when Gableman told her about the alleged incident.

(Justice Ziegler did not mention the alleged head-striking incident at her first meeting with detectives, which took place on June 30, 2011.)

The obvious question presents itself: Was Justice Prosser referring to the same head-striking incident that Gableman has alleged? If so, for one thing, Justice Prosser says he wasn't there, despite Gableman's statement that all seven justices were present on September 18, 2009.

And if so, for another thing, why did Gableman tell Justice Prosser, and furthermore tell Justice Ziegler, following his meeting with detectives on July 5, 2011, after never having spoken about the incident between September 18, 2009 and July 5, 2011, as Gableman had claimed?

And what about the one remaining justice, Justice Roggensack, who Gableman alleges was also present on September 18, 2009? Did Gableman likewise inform her? Roggensack has not commented so far.

Wisely, in my humble estimation.

In short, did Gableman round up his "conservative" pals on the court to make them aware of the little incendiary device he'd dropped to the detectives on July 5, 2011, to make sure everybody had their stories straight in case the topic arose? Seems like a reasonable question to me.

Aina? Inquiring minds want to know.

Walker's big gummint democracy by the numbers

So lemme get this straight.

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

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

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

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

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

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

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

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

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

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

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

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

Justice Prosser in majority only 86% of time

It's a meaningful distinction, we are told

So is Justice Roggensack in the majority 86% of the time, Justice Gableman is in the majority 88% of the time, compared with Justice Ziegler, who is only in the majority 91% of the time. Believe it or not, these figures are offered by the mandarins at the Milwaukee Journal-Sentinel in support of the proposition that Justice Prosser is really not all that often part of the court's hard-right conservative bloc, which consists of, um, Justices Roggensack, Gableman, and Ziegler.

Ha ha come on Journal Communications, Inc., we're not that naïve.

[Kloppenburg] seems likely to join the liberal wing.

*spit take* —— You owe me a new monitor, as the kids say.

eta: The thing is going over like a pork chop at a Jewish wedding.

And rightly so.

WI Supreme Court syllogism head scratcher

Because the majority opinion may be read, mistakenly, as requiring a finding of both the veracity, i.e., truthfulness, of Mr. X and the reliability of the information he provided before a search warrant may issue, I respectfully concur. State v. Romero, 2009 WI 32, ¶66 (Roggensack, J., concurring).

And the foregoing conclusion may also be mistakenly read as stating that Justice Roggensack (along with Justices Ziegler and Gableman) agrees with the majority's affirming Mr. Romero's conviction for selling crack because the majority opinion may be read mistakenly.

If Mr. X, then why? — Aristotle

Prosser, Roggensack hypocrites? Of course!

Atty. Tom Basting writes:

The conference regarding [learned counsel John] Dawson was held in secret. After the vote was taken not to reappoint, Justice Pat Roggensack spoke to Gannet Wisconsin Media (according to the Appleton Post Crescent) and attempted to disclose what had occurred in the closed session — which she had insisted be closed.

Meanwhile Justice Prosser is deciding who gets reappointed to the chair of the Wisconsin Judicial Commission at the moment Justice Prosser is the subject of a pending Wisconsin Judicial Commission prosecution.

How embarrassing. For everybody.

Patience Roggensack Prosser's latest recusal target

"The objective standards for recusal in Wis. Stat. $ 757.19(2)(b) are unequivocal," asserts Justice David "Side Door" Prosser's attorney, Kevin Reak. "In view of the statutory mandate, I am writing to request respectfully that you [Justice Patience Roggensack] recuse yourself in this matter." Firstly, Mr. Reak's reference to the "statutory mandate" is inconsistent, in that he just got done asserting that "the [Wisconsin Judicial Commission's] complaint will remain in the Supreme Court until the Court issues an order sending the matter to the Chief Judge of the Court of Appeals for the appointment of a three-judge panel."

And ironic because there is no "statutory mandate" requiring any such Supreme Court order and in fact the statutory mandate issues directly to the Chief Judge of the Court of Appeals to appoint the three-judge panel without any supplementary order required from the higher court.

Secondly the recusal statute to which Counselor Reak cites is limited to "any civil or criminal action or proceeding," which raises the question whether a judicial commission investigation is either a civil or criminal action. We know it's not a criminal action because there are no criminal penalties attached to the panoply of disciplinary moves the Supreme Court may make upon review of the three-judge panel's recommended disposition (which the Supreme Court may also ignore completely).

And we may quite possibly know that a judicial commission investigation is not a civil action either, because as Wis. Stat. § 757.85(7) instructs, "[i]nsofar as practicable, the procedures applicable to civil actions apply to proceedings under ss. 757.81 to 757.99 [the statutory sections regulating the judicial commission and its activities] after the filing of a complaint or petition." In other words the statutes explicitly contemplate that procedures applicable to civil actions may not be practicable, which inapplicable or impracticable procedures would place them outside the purview of Wisconsin civil procedure delineated elsewhere in the State statutes. So how could a judicial commission investigation be a civil action if it doesn't conform to the rules of civil actions? It cannot be.

In any event the plain language of the Wisconsin statute prima facie distinguishes judicial commission investigations from civil actions.

This here blargh has mentioned on previous occasions that the statutory framework governing judicial commission investigations is a bit of a mess. Indeed Justice N. Patrick Crooks pointed out a number of discrepancies to a State legislative committee in the wake of the Mike Gableman debacle a couple of years ago and suggested that representatives of that committee would do well to sit down and review those discrepancies and do something about them, but they never did.

They should have listened to him. He's a very smart guy, in particular in matters of legal procedure, and he's been a judge for several decades.

So here we are again, and Mr. Reak has apparently unwittingly limned yet another inconsistency in the law. However it seems to me he cannot rely on the recusal statute he's referencing for the above-mentioned reasons so perhaps he needs to get back to the drawing board himself.