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.

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."

How Patrick McIlheran lies for the WISGOP

Perfect example right here:

One Dane County judge rules that collective bargaining reform is unacceptable ...

This is your Journal Communications, Inc. brand of journalism.

But as one Dane County judge very clearly explained, both the federal Constitution and the Wisconsin constitution confer the judicial power equally to both higher and lower courts.* And as one Dane County judge very clearly explained, her ruling was directed at "the March 9, 2011 action of the Legislature's Joint Committee of Conference" and not whether the Walker administration's policy was acceptable or not.

Journal Communications, Inc.'s Patrick McIlheran is flat-out lying.

On the other hand, the Wisconsin Department of Justice, which is "representing the Republicans," makes repeated explicit defenses of Republican political policy in its latest filing with the Supreme Court pursuant to its attempt to have that court legislate from the bench.

The DOJ, on behalf of Scott Walker's infamous building maintenance supervisor Mike Huebsch, has gone so far as to suggest that the one Dane County judge, Maryann Sumi, violated the State code of judicial ethics by responding to the DOJ's petition for a supervisory writ (it's not an appeal, as has been widely reported). Now that is remarkable.

The Supreme Court, which does indeed have superintending authority over the (lower) circuit courts, on May 4 ordered Judge Sumi to file a response to the Huebsch/DOJ petition. Yes, ordered. The DOJ suggests that Judge Sumi should have exercised her option not to respond. The Wisconsin Rules of Appellate Procedure, at Wis. Stat. § 809.51(2), allow that a respondent to a petition for supervisory writ "may file a letter stating that he or she does not intend to file a response."

In other words, a respondent is not exempt or excepted from the Supreme Court's order but may disobey an order of the Supreme Court. Respondents to petitions for a supervisory writ are not limited to "court[s] and the presiding judge[s]," but the petition may be filed against "other person[s] or bod[ies]." And clearly Judge Sumi is in a different position vis-à-vis the Supreme Court than other persons or bodies not courts and presiding judges. Yet the Wisconsin Department of Justice suggests she should have disobeyed the Supreme Court's order.

Obviously Judge Sumi did not disobey an order of the Supreme Court.

And for not disobeying the Supreme Court's order, the Department of Justice is now veiledly threatening to file a motion for recusal against Judge Sumi, despite the fact that the ultimate determination for Judge Sumi's disqualification from the case of Ozanne v. Fitzgerald resides with Judge Sumi, once again, according to the black letter State law.

So at this point the Department of Justice is merely throwing stuff against the wall to find out if any of it will stick, in the course of its "representation of the Republicans." Thus whose impartiality is under question here is pretty obvious. And it sure ain't Judge Sumi's.

All of which demonstrates at least three things: (1) the ideological zealotry of Deputy Attorney General Kevin St. John, (2) Attorney General J.B. Van Hollen's acquiescence to Mr. St. John getting on this breakaway, and (3) the WISGOP Republicans' abject terror at attempting to have their union-busting bill passed by a non-illegal procedure.

McIlheran's bald lie is put forth in service of advertising his appearance tomorrow morning on another Journal Communications, Inc. buffoon's teevee show, Charlie Sykes's Sunday Insight [sic], which runs on Journal Communications, Inc.'s teevee station, TMJ-4. And of course Sykes is also an employee of Journal Communications, Inc.'s radio station, WTMJ.

There you have it, Journal Communications, Inc.'s corpo-blanketing of Milwaukee media with conservative Republican talking points. Because I wouldn't expect a discussion of the Rules of Appellate Procedure among Charlie Sykes and his guests tomorrow, who also include one of the most absurd conservative Republican political hacks in Wisconsin, Brian Fraley.

Roughly as absurd as the political hacks at Journal Communications, Inc.

* Matter of fact the same principle was invoked here in defense of J.B. Van Hollen, which days of defending JBVH at this space are long gone.

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.

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?

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.

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

Wisconsin letter of the day

From Lester Pines, counsel for State Sen. Mark Miller, to the clerk of the Wisconsin Supreme Court, blasting Deputy Attorney General Kevin St. John for coming "perilously close" to violating SCR 20:8.2* (.pdf; 3 pgs.).

Meanwhile the Supreme Court's docket still shows oral argument scheduled for Monday, June 6, related to Scott Walker's building maintenance supervisor Mike Huebsch's petition for a supervisory writ, a petition grounded in challenging a temporary injunction that doesn't even exist any more (it was superseded by Sumi's final judgment).

Fitz Van Walker's multi-ring circus gets more ridiculous every day.

It's gotten so bad that our old friend perfesser to the wing-nuts Rick Esenberg, at the Marquette law school's faculty blog refers to "[t]he Zimmerman and Goodland cases" in support of his allegedly profound doctrinal claims, despite Goodland v. Zimmerman being one case.**

I guess when all you have is hand waving, inventing precedent works too.

And Journal Communications, Inc. loves the guy, of course.

It's comical.

* Supreme Court Rule 20:8.2: "A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge ... "

** Goodland v. Zimmerman is a 1943 decision of the Wisconsin Supreme Court. If the Open Meetings Law didn't contain eleventeen provisions expressly superseding the holding in Goodland, this case would be a slam dunk, and Judge Sumi would have ruled opposite to what she has done. What I find amusing is that so-called judicial conservatives (e.g., Rick Esenberg) now deriding Judge Sumi for following to the letter what the legislature has laid down instead of the holding of seven "black robed elites" in Goodland will just as facilely in different circumstances deride similarly situated judges for following judge-made doctrine instead of the clear directives of the democratically elected legislature. There are no judicial "principles" to so-called judicial conservatism. It is purely a matter of what is convenient under which circumstances that are most suitable for the furtherance of conservative political policy, in this case, the gutting of the collective bargaining rights of public employees.

Other examples, from the work of Justice Prosser, may be found here.

Conversely, Judge Sumi's reasoning is an example of what conservative jurisprudence is supposed to be. Which is why, if it does indeed come to pass that the "conservatives" on the Wisconsin Supreme Court do get around to reversing Judge Sumi, as is desperately pleaded for by the Fitz Van Walker regime and its disciples, that court's own reasoning cannot be anything other than tortured and circuitous by comparison to Judge Sumi's. And the attendant celebration by the disciples will be even sillier.

An extraordinary writ is a supervisory remedy

Affirmed the Wisconsin Supreme Court, yesterday:

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

So, is that what Dane County Circuit Judge Maryann Sumi did?

No, of course not. Which is apparently why the same Wisconsin Supreme Court, by a majority composed of the same four conservative justices who just one month ago needed to invent a novel form of judicial authority, which it dubbed "supervisory/original jurisdiction," to avoid precisely the requirement the Wisconsin Supreme Court now affirms.

The court elaborates:

[A] petition for a supervisory writ will not be issued unless the duty of the circuit court is plain [and the circuit court's] refusal to act within the line of such duty or its intent to act in violation of such duty is clear.

I'm paraphrasing. Yesterday's majority supplies the underlining.

Not only did the Supreme Court, in Huebsch v. Dane County Circuit Court, fail to describe either what Judge Sumi's plain duty was or how exactly she refused it or intended to violate it — and yesterday the Supreme Court confirmed that a supervisory court must do both — in fact neither the term "plain" nor the term "duty" even appear in the court's June 14 order in the context of Judge Sumi's deliberations.

Thus may one puzzle as to how the Supreme Court might issue a supervisory writ without even addressing the criteria by which it exercises its authority to issue a supervisory writ, let alone explaining it.

Simple: Invent a novel source of judicial authority, what any self-respecting conservative jurisprude would do, of course. For we are assured they are conservatives, even by those judges themselves.

Granted, they are conservative Republicans. But conservative in the sense of the oft-invoked and sacred canons of "judicial restraint"? Considerably less so, expediency permitting. Indeed if anyone was carefully mindful of conservative principles of restraint, it was Sumi.

And, more remarkably, yesterday the court clarified that "a supervisory writ is dedicated to the discretion of the court of original jurisdiction."

That's ambiguous, but what it means is the supervisory writ is aimed at the discretion of the court of original jurisdiction. That is, it's the discretion of the court of original jurisdiction, and the alleged abuse of that discretion, which a supervisory writ is dedicated to supervising.

And in Huebsch, the court of original jurisdiction was the one named in Huebsch's petition, the one presided over by Dane County Judge Sumi. That's what original jurisdiction means: the first court to hear the case.

In fact the Supreme Court was the third court to have been presented the case, the second being the District IV Court of Appeals, which passed the Department of Justice's previous motion for permission to appeal on to the Supreme Court.* So how in the world could the Supreme Court exercise any claimed definition of original jurisdiction over this case?

Again, piece of cake: Slap together with some punctuation the court's supervisory authority and its power to hear cases in original jurisdiction.

The Wisconsin constitution empowers the Supreme Court with four separate avenues of authority: superintending (a.k.a. supervisory), administrative (which is not at issue in Huebsch v. Dane County), appellate jurisdiction (the Huebsch Court dismissed the DOJ's petition to exercise its appellate jurisdiction), and original jurisdiction. Original jurisdiction was off the table in March. As Justice Crooks flatly stated, "No petition for original jurisdiction ... was filed in this court by any party. . . . There is nothing 'original' or 'in the first instance' here."

The Department of Justice clearly understood this, as is evident from the entire procedural history of this case, and from all of the DOJ's paper filings. The Supreme Court maneuvered the DOJ into position to act as the Supreme Court's proxy in order to achieve the result that a majority of the Supreme Court sought. There is no other explanation.

There's certainly no other satisfactory explanation. Take a look at this bland assertion made by the Huebsch v. Dane County majority:

¶5 IT IS FURTHER ORDERED that the petition for original jurisdiction in Case No. 2011AP765-W is granted, State ex rel. La Follette v. Stitt, 114 Wis. 2d 358, 338 N.W.2d 684 (1983), and all motions to dismiss and for supplemental briefing are denied.

Case No. 2011AP765-W is a petition for supervisory writ, and not a petition for original jurisdiction. On the other hand, La Follette v. Stitt was a petition for original jurisdiction. The Huebsch majority does not tell us where exactly to look in La Follette v. Stitt to support its rationale; it merely cites the entire case. But presumably, it means this:

We granted the petition to commence an original action because this matter is publici juris and requires a prompt and authoritative determination by this court in the first instance.

However the (judge-made) doctrine of publici juris** is invoked in Stitt to justify the granting of La Follette's petition to the Supreme Court to accept original jurisdiction over his case. Indeed, Stitt itself cites to this prior caselaw: "If the matter is publici juris, this court may elect to take original jurisdiction if asked to do so." This underlining added.

Which the Huebsch Court wasn't asked. Its ¶5 is pure magical fiat.

Any conservative could tell you that.

Footnote footnote: Yesterday's footnote 6 is also pretty cute. It reads, "Wisconsin Stat. § 809.51 is the appellate rule that governs petitions for a '[s]upervisory writ and original jurisdiction to issue prerogative writ.'"

This is true as far as it goes but the fact of the matter is, Wis. Stat. § 809.51 also distinguishes between supervisory and original jurisdiction, presenting as it does a choice to prospective petitioners as to whether they will proceed in accordance with one or the other form of authority.

But the distinction is not so much germane to Huebsch, where the majority conjured a petition for an original action from a petition for a supervisory writ, and Huebsch doesn't get to § 809.51 except by way of § 809.71, which is the Supreme Court rule exclusive to its supervisory jurisdiction. While § 809.51 presents both options, the presence of two separate statutory provisions, § 809.71 and § 809.70, reinforces the contention that "supervisory/original jurisdiction" makes as much sense as "disorderly/theft" or "sexual assault of a/moveable property."***

On the other hand, the Supreme Court helpfully disabuses the absurdist notion that the only court referred to in Wis. Stat. § 809.51 is the court of appeals, a notion published in apparent seriousness on, of all places, the front page of the Marquette University Law School's faculty blog.

* And which the Supreme Court dismissed on June 14 — unanimously.

** Publici juris simply means "public right." The public also retains a couple of more fundamental rights: the right to draft constitutions and enact rules that define and delineate the powers of the courts and the right to not draft constitutions and not enact rules which authorize courts to combine those powers into new, judicially manufactured ones.

*** Notwithstanding Lt. Gov. Rebecca Kleefisch's table/marriages.

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.

Scott Walker and the separation of WISGOP powers

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[Wis. Stat. Sec.] 165.25(1) [The department of justice shall] appear for the state and prosecute or defend all actions and proceedings, civil or criminal, in the court of appeals and the supreme court, in which the state is interested or a party, and attend to and prosecute or defend all civil cases sent or remanded to any circuit court in which the state is a party.

165.25(1m) If requested by the governor or either house of the legislature, appear for and represent the state, any state department, agency, official, employee or agent, whether required to appear as a party or witness in any civil or criminal matter, and prosecute or defend in any court or before any officer, any cause or matter, civil or criminal, in which the state or the people of this state may be interested.

Here's another interesting and thus far overlooked tidbit from last Monday's marathon session of the Wisconsin Supreme Court, wherein Deputy Attorney General Kevin St. John concedes directly to the Chief Justice that the Department of Justice is appearing not on behalf of Secretary of Capitol Building Maintenance Mike Huebsch, but on the explicit direction of the governor, Scott Walker. And what Walker is complaining about is, ironically, a separation of powers violation.

During St. John's oral presentation, the Chief Justice is engaging the lawyer on some procedural posturings. Recall that while the hearings were underway in Dane County Circuit Judge Maryann Sumi's court in Ozanne v. Fitzgerald, Judge Sumi issued a temporary restraining order. A TRO is not a "final judgment" and the difference between a TRO and a final judgment is determinative of how Scott Fitzgerald and the other defendants may attack a judge's disposition, be it final or temporary.

In Wisconsin there exists a right to appeal final judgments, but if the defendant Republican legislators here wish to attack the TRO, they must be granted permission to do so by the court of appeals. Thus did the Department of Justice file a motion for permission to appeal a non-final order (the TRO) on March 21 with the District IV Court of Appeals.

The court of appeals declined to entertain that motion, but rather certified ("passed on," or "kicked upstairs," in the vernacular) the DOJ's petition to the Supreme Court. The Supreme Court announced nothing further with regard to that petition until June 3, when it issued an order consolidating it with the DOJ's petition for a supervisory writ, as in the interim between scheduling oral arguments on whether to entertain the supervisory writ, Judge Sumi did indeed issue a final judgment.

So the Chief Justice is wondering about from whence comes the DOJ's authority to bring the petition for a supervisory writ (a writ is a court order, and in this case the DOJ is seeking an order vacating Judge Sumi's disposition based on the Supreme Court's supervisory authority over the circuit courts). The petition for a supervisory writ was filed in the name of Mike Huebsch, but what the record transcribed below reveals is that the order came directly from Governor Walker himself, something Mr. St. John appears to be distinctly uncomfortable with admitting.

The exchange between the Chief Justice and the deputy AG, related to the foregoing issues of who gets to do what and when begins at 00:43:10 of Wisconsin Eye's video of the oral arguments and the CJ gets to the Walker's Point at 00:45:10. The ellipses are pauses, not edits.

CJA: Under what authority does the State bring this proceeding?

KSJ: The State brings this proceeding under [Wis. Stat. Sec. 165.25(1)(m) — see above].

CJA: 165 ... yes.

KSJ: 165.25, sub. 1m.

CJA: Point 25, one ...

KSJ: 1m.

CJA: What does that say, counsel?

KSJ: That provides, that says that the attorney general and I ... quote the statute [KSJ retrieves Volume 3 of the Wisconsin Statutes and Annotations] ...

CJA: 165 ... 25 ...

KSJ: It needs to be read in conjunction with sub. 1, but 1m provides that if requested by the governor or either house of the legislature ...

CJA: Okay.

KSJ: ... may ...

CJA: Did the governor make any request?

KSJ: Yes.

CJA: Is that on record?

KSJ: It's not part of the record for petition [for a supervisory writ]. The State appears in many actions at the request of the governor or on the legislature and wouldn't file that with the court. We'd be happy to do so if that were required.

CJA: Therefore, and represent the State. Okay, the court will take that under advisement. Is that what you're relying on, 'If requested by the governor, appear for and represent the State'?

KSJ: Mm hmm. In any matter in which the State or the people of this State may be interested. There's been a determination made ...

CJA: Oh wait, what about the sentence, "whether required to appear as a party or witness"? That clause.

KSJ: Mm hmm. In any ...

CJA: Well ...

KSJ: And prosecute or defend ...

CJA: Are you required to appear here as a party? Here?

KSJ: Uh, there's no requirement ...

CJA: Okay. So you're going on to, "and prosecute in any court," right?

KSJ: That's correct.

CJA: "In which the State or the people may be interested."

KSJ: That's correct.

CJA: Okay. This is one of the things that is ... and on page four of your Ozanne you rely on 165.25, but there you say only that the AG decides whether what's the best interest of the State so now you're relying on the governor, is that it?

KSJ: There is authority in this case from the governor, there is also authority in this court's precedent that says that the attorney general may appear before this court with or without the governor's approval to advance an interest of the State.

He goes on. But he's already admitted to the Chief Justice, who is more interested in the express language of the State statutes, that in this case what he's relying on is a request from the governor, Scott Walker.

So you have Republican Scott Walker, the chief executive branch officer, petitioning the Republican-controlled Supreme Court,* the top entity within the judicial branch, to in effect discipline a lower court because it ruled against his Republican pals and allies in the legislative branch. And what Walker is complaining about ultimately is a violation of the doctrine of constitutional separation of powers. That is one not-too-subtle irony.

Deputy AG St. John's pursed "mm hmms" indicate he was none too comfortable with the Chief Justice's line of inquiry. Witnesses at trial who answer "mm hmm" rather than "yes" are often admonished by the court for not speaking up clearly and affirmatively. I wonder why St. John was so reticent at providing this information, that the Department of Justice is acting on the direct order of Governor Scott Walker.

Because the named petitioner clearly has no idea what's going on.

Since Monday a slew of additional documents were filed with the State Supreme Court, but this space doesn't know whether Walker's directive to the DOJ is among them. It may well be quite an edifying read.

* Let's dispense with the "nonpartisan" façade for a moment. Everybody knows how many millions of dollars (and thousands of logically fallacious and unethical teevee ads) Republican-affiliated outfits have produced and spent to ensure and protect the current make-up of the court.

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.)

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.

Judge Sumi gets mail

Bill Lueders collects it. And it's really, really, appallingly ignorant.

The fact of the matter is, Dane County Circuit Judge Maryann Sumi is on firm legal ground, and is following very conservative principles of statutory and constitutional construction. Failing a higher court's ruling according to the most circuitously reasoned of procedural arcana, there seems to me no way that Judge Sumi's temporary restraining order in Ozanne v. Fitzgerald can be vacated without finding the Wisconsin Open Meetings Law is itself unconstitutional.

Wisconsin Fitzgeralds won't be fined ... for now

Except for the parts we completely ignored:

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

Well this is pleasing (Judge Sumi, Final Judgment) (.pdf; 18 pgs.).

Judge Sumi's Decision and Order (the good stuff) (.pdf; 33 pgs.).

Poor Mike Huebsch, he's going to have to retool his whole strategery.

Because Judge Sumi just scuffed his limestone pier.

¶ 79 There is no rule adopted by the Legislature, applicable to the March 9, 2011, meeting of the Joint Committee of Conference, that conflicts with any requirements of the Open Meetings Law, within the meaning of Wis. Stat. § 19.87(2).

But you knew that already.

lol@Sykes calling Rick Esenberg. Might have to actually listen to that.

Sneering comedy gold, doubtless.

And, via @wisconsinreport:

Assembly speaker [Jeff Fitzgerald] confident high court will undo

Their hubris truly knows no bounds.

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.

Wisconsin: Ozanne v. Fitzgerald — A preview

Must. Destroy. Union. Dirty hippies blargh. — Shorter WISGOP

Action resumes this morning in the courtroom of Dane County Circuit Judge Maryann Sumi. The key elements of plaintiff Dane County District Attorney Ismail Ozanne's latest brief reduced to three tweets:

Dane County DA Ozanne concurs, Fitz pulled nothing but a Kinko's job, and he also wants the Kinko's job declared null and void. Ozanne further argues the LRB is bound by the TRO in addition to the SoS on account of the LRB's statutory proximity to the SoS.* And of course Ozanne argues the AG's attempt to moot the case is groundless and absurd (in so many words).

This new wrinkle to the case shouldn't be terribly difficult for Judge Sumi to dispose of. It's not even a close question. Think of it this way: If I can figure out in ten minutes what's since been affirmed by everybody from Ed Fallone to the Legislative Reference Bureau, it can't be rocket surgery. I cite Fallone** and the LRB as authorities because: Fallone's area of expertise is constitutional law, and the LRB has the nonpartisan, dispassionate, objective cred as few others do.

Rotating

The AG's argument is mostly bluster and about the furthest thing you'd expect from a self-advertised judicial conservative. It's bordering on the painful to follow its logic (such as it is) and is incoherent compared to the parsimonious Kinko's Amendment theory.

It's enough to send William of Ockham to rotating violently in his crypt, which is inadvisable because there are sharp objects in there.

It truly is astonishing that Fitz Van Walker would go to these lengths and is perhaps the best indicator yet that Walker and Fitzgerald are terrified to run this bill past another vote in the legislature.

Hockey sock

The bill likely wouldn't succeed this time around because they've since pissed off nearly everybody in the State, placed their own colleagues in serious danger of recall, and perhaps most importantly, imperiled their conservative majority on the Supreme Court. They're on the verge of nullifying the 2008 election of Michael Gableman — which alone justifies a vote for Kloppenburg — the one that cost Wisconsin Manufacturers & Commerce one king hell hockey sock full of dough.

And now warding off the FitzWalker taint from the incumbent conservative Justice David Prosser is going to cost WMC & Friends the other sock. But FitzWalker keeps pushing. It's pure madness.

Harrumph

As for the merits, two crucial points: 1) The Department of Justice admitted as much as three minutes less than two hours notice was given in advance of the Fitzgeralds' twilight ramble and 2) The DoJ conceded that the constitutional and statutory requirements of the Wisconsin Open Meetings Law override the legislature's immunity from judicial branch scrutiny of its internal procedural minutiae:

"Correct. . . . Absolutely correct."

Oh dearie, dearie me.

* This is an especially compelling argument because it puts to keen use a slightly modified version of AG Van Hollen's claim that the LRB's and the Secretary of State's "publications" are identical. If it is the case they are identical, then the LRB is likewise bound by Judge Sumi's restraining order. Slightly modified in the sense that although Van Hollen's claim is false, if Van Hollen wishes to assert its truth, then he must by the same reasoning concede that the TRO enjoins the LRB, which AG JBVH must deny. But JBVH can't have it both ways.

Nevertheless, Ozanne can demonstrate that the LRB was subject to the TRO without availing himself of any of Van Hollen's assertions.

** I also cite Fallone because Fallone said: "I do not see my analysis as differing in any significant way from the analysis previously set forth in this blog," meaning this blog, the one you're reading now.

No love for an old alumnus at the MULS webpage though! Harrumph.