Scott Fitzgerald orders 2011 WI Act 10 printed

Senator's bold move constructively no different than visiting Kinko's

Word is Republican State Senate leader Scott Fitzgerald ordered the Legislative Reference Bureau to "publish" (scare quotes because "publication" did not occur) 2011 Wisconsin Act 10 (.pdf; 46 pgs.).

Obviously Republican State Senate leader Scott Fitzgerald is sufficiently aware there is currently a Dane County circuit court order in force preventing the Secretary of State from publishing the Act.

"Publish" and "publication" are legal terms of art referring here to a step in the legislative process immediately preceding enforceability.

There is a footnote purportedly justifying Republican desperado numero dos Scott Fitzgerald's "order" on the cover page of the Act citing Wis. Stat. §35.095(3)(a), which itself states:

[T]he [LRB] shall publish every act and every portion of an act which is enacted by the legislature over the governor's partial veto within 10 working days after its date of enactment.

But I suspect "publish" doesn't mean publish in the sense that the Secretary of State is enjoined from doing, but rather publishing as in printing onto paper, as §35.095 resides in a subchapter of the statutes entitled, "LEGISLATIVE; CLASS 1 PRINTING." Therefore it's reasonable to wonder whether Fitzgerald is trying to pull a fast one (it's also reasonable to wonder that just because it's Fitzgerald).

Consequently, it's likewise reasonable to inquire into Scott Fitzgerald's intent, not just because he's Scott Fitzgerald this time but because of what the Supreme Court had to say in 2009:

[I]f some action is argued to be sufficient to constitute publication, that action must be evaluated in light of the purpose publication seeks to achieve, i.e., was the public provided with sufficient notice of the law that is being enacted or amended.

— MKE Journal Sentinel v. Wisconsin Dept. of Admin.*

It's debatable if sufficient notice is even possible, given publication was enjoined by a court order in effect to this very moment.

And of course there are many uncounted other purposes, one of which is conceivably Scott Fitzgerald's capriciousness,** in trying to pass off "printing" as "publication." I wouldn't put it past him.

I don't believe this particular action constitutes publication at all.

The utter farce continues ... Welcome to Fitzwalkerstan.

* Of which Fitz should have knowledge, because there's a strong possibility it's going to facilitate his downfall in the Supreme Court.

** I leave it to others to characterize Fitzgerald's performance in less charitable terms, most of which are assuredly every bit as applicable.

eta 01 — Act 10 is unenforceable in its present posture:

[F]urther action by the Secretary of State is required in order for Act 10 to take effect.

Legislative Reference Bureau memo to Rep. Peter Barca (.pdf)

Seems to me it would have been easier just to call what the Legislative Reference Bureau did "printing" instead of "publishing" (subchapter headings aren't law, but they're a good guide). On the other hand, the LRB doesn't want to change the words of the statutes because they're straight arrows, and rightly so. Changing the words of the statutes is what the courts (and insolent bloggers) get to do.

eta 02 — A bit more here and here. And also here, which comes complete with a local wing-nut round-up and the inspired jape,

What Republicans do best: Turning an end around run into running into their own rounded rear ends.

Priceless, and funny 'cause it's true.

Much more here also.

Fitzgerald touts record of lawbreaking in Senate bid

Exciting news, Jeff Fitzgerald is running for the U.S. Senate:

Wisconsin Assembly Speaker Jeff Fitzgerald (R-Horicon) says his experience shepherding controversial collective bargaining reforms through the legislature has left him battletested [sic] and ready to take the fight for true reform to Washington.

Which is funny because not only were the reforms "shepherded" in violation of Wisconsin law, but according to trial court testimony, it was Fitzgerald personally who held up providing the minimum notice for the fateful joint committee meeting of March 9, 2011. Rachel Veum, the Wisconsin Senate's Records and Forms Management Specialist, testified April 1 that she had to "run" around the Capitol in search of Fitzgerald.

And Fitzgerald, by not being in his office at the crucial moment, was the reason why the elapsed time between notice and meeting was one hour and 57-ish minutes, a fact admitted in court by Fitzgerald's own counsel.

Thus was Fitzgerald himself responsible for the subsequent constitutional crisis, which was only settled after a bare majority of the State Supreme Court discovered a novel form of judicial authority that, as we learned somewhat after the fact, it was so eager to announce in order to save WISGOP legislators the trouble of convening a lawful meeting that the four marched into the dissenters' chambers, a struggle ensued, and one justice admitted to having placed his hands around the neck of another.

And of course it was Assemblyman Jeff Fitzgerald who led the demand for the arrest, custody, and secure police conveyance of his political adversaries. Fitzgerald's brother Scott, the Senate Majority Leader, paid $27,000 for a legal memorandum purportedly authorizing the pair to have the entire Wisconsin Senate Democratic caucus — including State Senator Julie Lassa, who at the time was seven months pregnant — "carried ... feet first" across a threshold inside the Capitol building.

It's a record, alright. It's just not an especially enviable one.

Fitzgerald unrepentant

A big man has no time really to do anything but just sit and be big.

— F. Scott Fitzgerald (no relation)

Cue Entry of the Gladiators:

"We passed the law correctly, legally the first time," Scott Fitzgerald said. "Passing the law correctly and legally a second or third time wouldn't change anything. It certainly wouldn't stop another activist judge and room full of lawyers (from trying) to start this merry-go-round all over again."

Well it's marginally a downgrade from "supremely" and "perfectly."

So that's something.

"They could do (the legislation) over," said Dane County District Attorney Ismail Ozanne, plaintiff in the case. "It's been stated on the record that they could do the vote again."

By my conservative estimate, Senator Scott Fitzgerald, who is in charge of the Senate (or his brother Rep. Jeff Fitzgerald, who is in charge of the Assembly), could have given seventeen 24-hour notices by now. And more importantly saved a Senate clerk from running — literally, that was today's testimony — back and forth between their offices in order to attempt producing A notice of their "hastily called" March 9 meeting. These guys are so organizized, Jeff Fitzgerald wasn't even in his office to affix his signature to the notice when the crucial moment approached. Rachel Veum, the Senate's Records and Forms Management Specialist, testified today that she had to jog — ran, she also said — around the Capitol in her clogs in search of the two elusive Republican power brothers, while building security personnel pointed and laughed and quipped, "Here she comes again!"

Among many of the revelations brought to the fore by the Ozanne v. Fitzgerald hearings are those pertaining to Scott Fitzgerald's style of management, which has elsewhere been depicted as inappropriately coercive as well. With employers like that in the business, my own reaction is inclined toward: "Thank God for collective bargaining."*

* Which comprises the very rights and privileges for workers the Brothers Fitzgerald and Gov. Scott Walker, aided by a "room full of lawyers" provided by Attorney General J.B. Van Hollen's office, are attempting to strip from State employees. Is it any bloody wonder.

More Blackstone for the 14 Senate Democrats

Senate Resolution 1 (.pdf; 3 pgs.):

Resolved, That ... the majority leader shall immediately issue an order to the sergeant at arms that he take any and all necessary steps, with or without force, and with or without the assistance of law enforcement officers, by warrant or other legal process, as he may deem necessary in order to bring [each] senator to the senate chambers . . .

Which the majority leader then proceeded to do.

The venerable William Blackstone, whose wisdom was earlier prevailed upon to justify Sen. Fitzgerald's allegedly boundless authority to compel the attendance of the 14 Senate Democrats:

[F]reedom of speech is particularly demanded of the king in person, by the speaker of the house of commons, at the opening of every new parliament. So likewise are the other privileges, of person, servants, lands and goods, which are immunities as antient as Edward the confessor . . .

This includes not only privilege from illegal violence, but also from legal arrests, and seisures by process from the courts of law.* To assault by violence a member of either house ... is a high contempt of parliament, and there punished with the utmost severity.

Emphasis added. Assault has a fairly straightforward meaning:

The threat or use of force on another that causes that person to have a reasonable apprehension of imminent or harmful contact; the act of putting another person in reasonable fear or apprehension of an immediate battery by means of an act amounting to an attempt or threat to commit a battery.

The enforcement of Sen. Fitzgerald's ersatz "arrest warrants," by their very terms, might easily satisfy any or all of those elements of assault. Arguably, Fitzgerald's "warrants" already have satisfied them, containing as they do threats of force causing the named Senators reasonable apprehension of harmful contact (in particular District 24 Sen. Julie Lassa, who is six months pregnant).

Yet there are those who insist — ironically, by appeals to Blackstone and his even more ancient predecessors — not only that Sen. Fitzgerald's legislative powers are completely unrestrained by the constitution's absolute prohibition against the arrest of legislators, completely unrestrained by the State statute that expressly denies Fitzgerald and his Republican colleagues the power to make a finding of contempt against the 14 Senators (a finding that allegedly justifies the prohibited arrests), but that they are unrestrained by anything:

any and all ... with or without ... with or without ... as he may deem necessary ...

If I were one of the more physically vigorous of the 14 Democrats — Sen. Chris Larson, perhaps, although I bet Sen. Lena Taylor could put up a pretty good fight — I might consider resisting arrest to the extent a Blackstonian assault by Fitzgerald's agents was inevitable.

Fitzgerald's own imprisonment might conceivably ensue, by authority of a statute passed by the very body over which he now presides.

* Note once again the distinction between arrests and civil process.

P.S. Speaking of irony, according to Prof. Lindgren's line of reasoning — which raises a whole helluva lot more questions than it answers — not only might the 14 Democrats not avail themselves of the constitutional privilege against arrest, but neither could Fitzgerald for procuring their arrest. And according to statute, Fitz would face much more severe penalties than simply being "compelled" to return to Madison. It's one of those careful-what-you-wish-fors, apparently.

Wisconsin statutes, a couple three of them

Or Fitzwalkerstan: Here, let me show you it

First up, Wis. Stat. 991.11, from which the latest hubbub derives, as there remains to complete the legislative process to 2011 Wisconsin Act 10 the one step — "publication"* — between the status quo and enforceability, the moment the Act is released to the various wiles of Gov. Scott Walker. The Act is currently subject to the wise and cautious shepherding of WISGOP Senate leader Scott Fitzgerald, who is devising any manner of chicanery to hand the thing off to Walker.

(He said he got this brainstorm from reading a newspaper article.)

So, 991.11:

Effective date of acts. Every act and every portion of an act enacted by the legislature over the governor's partial veto which does not expressly prescribe the time when it takes effect shall take effect on the day after its date of publication as designated under s. 35.095 (3) (b).

Stricken are the bits that aren't germane here, but remain legible so you can still read them if you so desire have no life (in which case there's another 7,000 pages of them awaiting your pleasure).

Anyway, first notice that while there is a 35.095(3)(a), the effective date of acts provision (991.11) does not make reference to it.

35.095(3)(a):

[PUBLICATION] The legislative reference bureau shall publish every act and every portion of an act which is enacted by the legislature over the governor's partial veto within 10 working days after its date of enactment.

That's the "publication" (or "printing," as this space would contend) Republican Senate leader Scott Fitzgerald claims substitutes for publication for the purposes of 991.11. But it has nothing to do with 991.11. Here is the relevant — the operative — provision to 991.11:

35.095(3)(b):

PUBLICATION The secretary of state shall designate a date of publication for each act and every portion of an act which is enacted by the legislature over the governor's partial veto. The date of publication may not be more than 10 working days after the date of enactment.

Now the secretary of state did (for he "shall") at one point designate a date of publication for the Act, but on March 18, he rescinded it in compliance with the Dane County circuit court's temporary restraining order, which prevents the secretary of state from publishing the Act.

As for the date of publication being not more than 10 working days after the date of enactment, there is no reason why the secretary of state may not designate one retroactively, if and when the court order is lifted. In the meantime the secretary of state is enjoined from so doing and places himself in peril of contempt by acting.

The point is that publication by 35.095(3)(a) (what Scott Fitzgerald "ordered") does not fulfill the requirements of 991.11. It still remains for 991.11 to be satisfied and so in nowise might it be said that 2011 Wisconsin Act 10 has taken effect, nor that it is enforceable.

Sen. Fitzgerald and now Secretary of Administration Mike Huebsch are completely unmoored from the text, as Clarence Thomas might say, although Sec. Huebsch is considerably more circumspect about the whole affair than is the supercilious bluster of Sen. Fitzgerald, with his "supremely confident" and "perfectly" adhering to the law.

I don't expect this one to end well for Big (nor Little, ultimately) Fitz.

* Scare quotes are trending. I used them precisely this way last night and today they appeared in Dane County circuit court "duty judge" Sarah O'Brien's March 25 memo** (.pdf; 2 pgs.). Betcha she scanned the subchapter heading also: LEGISLATIVE; CLASS 1 PRINTING.

By comparison to the subchapter heading, "publication" is a sub-sub-subchapter heading, and its meaning there is informed by 991.11, because 991.11 sends you to 35.095(3)(b) in the first place. Thus does the "publication" in 35.095(3)(b) have the meaning 991.11 gives it, and that meaning is as a formal step in the legislative process, that moment the Act becomes owned by the executive branch.

This "publication" — date of, to be exact; it's a linear, timeline companion to date of enactment, when the governor approves the Act — is within the authority of the secretary of state. It's not the same "publication" as the one in 35.095(3)(a), that publication in the legislative reference bureau's provisionally separate authority.***

And the one that is not implicated by 991.11, the one upon which Scott Fitzgerald and his merry Republican-for-hire attorneys are mistakenly relying (we'll see how that goes on Tuesday morning).

There's a reason why 991.11 explicitly points at 35.095(3)(b) and explicitly does not point at 35.095(3)(a). Because the secretary of state's publication is substantively functional in the legislative process — it's a scheduling milestone, if you will — whereas the legislative reference bureau's is a function of records-keeping: it's a recording of the milestone that was made by the secretary of state.

And since the secretary of state is the subject of a temporary restraining order, he cannot make the milestone and therefore the LRB's recording is blank, so to say, in the substantive legal sense.

I guess you might even call that a "primer" in statutory construction. Although I wouldn't as I'm not purporting to "teach" anybody, only show you so you can see and think and work it out for yourself.

Finally, they could clean up the whole mess by changing the "shall publish" in 35.095(3)(a) to "shall print." Get on it, Sen. Grothman.

** See Footnote 1.
*** i.e., "CLASS 1 PRINTING."

Earlier related:
Scott Fitzgerald orders 2011 Wisconsin Act 10 printed
Scott Fitzgerald had better hope he's wrong
The Milwaukee Journal-Sentinel is out to back from lunch

Wisconsin's Scott Fitzgerald is a skilled politician

In news from the People's Republicans of Fitzwalkerstan:

"I would just be somewhat cautious in whatever we do so that it doesn't end up creating sympathy for the Dems," Tad Ottman, a Fitzgerald aide, wrote to his chief of staff.

Scott Fitzgerald, the GOP leader of the State Senate whose petty arrogance is the stuff of national legend, proceeded to issue 14 ersatz arrest warrants for the Democrats, supported by a legal memorandum which advised having a six-months-pregnant woman "carried ... feet first" into the Capitol building in Madison.*

I shite you not.

The authors of the memo insisted that Fitzgerald's authority to "compel" the attendance of the 14 Senators was without limit.

And evidently Fitzgerald took them seriously.

I spotted one of the 14 in a room in Shorewood the other night and made a point of shaking his hand vigorously and thanking him.

Fitzgerald, I guess you can thank the "Tea Party" for him.

* Ironically, a Dane County circuit court judge found that Fitzgerald's accomplice, Gov. Scott Walker, violated the Wisconsin constitution when he barred pregnant women from entering the Capitol building.'

Damned if you "carr[y] ... feet first," damned if you don't.

eta — Fitz lawyer: Dems' departure was a 9-11 type emergency

Blessedly, those charnel houses resist trivializing by dint of the extravagant delusions of grandeur of a Republican-for-hire lawyer.

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.)

Reality continues to amaze Scott Fitzgerald

Your grasp of reality, and control of your caucus as minority leader, continues [sic] to amaze me. — Scott Fitzgerald

Wisconsin State Senate Republican leader Scott Fitzgerald heaps scorn on his Democratic counterpart, minority leader Sen. Mark Miller. The reality is that the 14 Democrats — Miller's entire caucus — remain united in their resistance to the union-busting provisions in Fitz and Governor Scott Walker's so-called "budget repair bill."

Scott Fitzgerald's own personal "reality," on the other hand, involves issuing ersatz "arrest warrants" against his political opponents.

Appearing telephonically on MSNBC's The Last Word yesterday, Fitzgerald strayed far from the reservation by declaring federal stimulus funds improved the State's fiscal situation, and incorrectly attributed a remark of Henry David Thoreau's to Thomas Jefferson.

Fitz also alleged two of the Democrats make frequent visits across the Illinois border to Kenosha, WI, an indication of how phony his "arrest warrants" are, otherwise Fitz would have had the two "carried ... feet first" into the Wisconsin Senate in accordance with the advice of his privately retained Republican attorneys, who recently filed a suit in Oconto County that they had to know they would lose.

Rather, the conservative attorneys did so to obtain an ancillary statement they could present to Fitzgerald, which they didn't quite obtain, but affirmatively claimed they did anyway, in a memo to Fitz.

Meanwhile Walker "speculates" Miller has been on the phone with labor leaders "in Washington or whatever," "with no apparent irony."

Recall (pun intended) that according to a conservative think tank's poll, 65% of Wisconsinites want Walker to compromise, and the only compromise at issue is the continuing right to collective bargaining.

Fitz admits: Scott Walker's been lying for weeks

To wit: By insisting at press conference after press conference that union-busting provisions in his so-called budget repair bill are "fiscal" in nature, for the purposes of the Wisconsin constitution. Fiscal bills require the supermajority in the State Senate which 14 Democrats camped out in Illinois have been denying Walker since mid-February.

Last evening State Senate Republicans stripped the provisions from the larger bill — which they could have easily done straight from the get-go — and are moving them quickly through the legislature, having evidently calculated that the national uproar they've created simply in threatening to bust the State employees' unions would be tougher to ride out than the impending uproar over actually busting them.

It appears Scott Walker's insistences were based on pure political disingenuousness; he did not campaign on the question of stripping public employees' of their collective bargaining rights although it was his and his right-wing financiers' plan all along, as he revealed and reinforced during an astonishing 20-minute telephone conversation with a prankster he believed to be Kansas-based oil billionaire David Koch, whose "grassroots" front outfits are jacking up their attacks on Wisconsin workers despite the burgeoning support for the latter.

The Republican leader of the Wisconsin state Senate says there will be no vote on a bill taking away union rights for government workers until Democrats return. ... Scott Fitzgerald says he will not attempt to pass any portions of the bill without Democrats present. — Associated Press, 02/21/11

So Scott Fitzgerald hasn't been entirely truthful either, because he began that process last night. The State Assembly will take up Fitzgerald's truncated bill this morning. One vote to watch is that of Rep. Jeff Stone, who is running for Milwaukee County Executive.

That election takes place just around the corner on April 5.

Stone voted for the full budget repair bill previously, but then expressed misgivings about the union-busting provisions, the ones now isolated from the rest. (Xoff notes that Stone waffled yet again, during an appearance with the local AM radio clown Charlie Sykes.)

Now's he's got a chance to nail it down, for good or ill, on the record.

Nate Silver's analysis suggests that the pandemonium inspired by Walker and Fitzgerald's reckless maneuverings could well drive Democrats and independent sympathizers to the April 5 poll in greater numbers than Republicans and recent surveys have shown Wisconsin public opinion running two-thirds against Walker's refusal to budge on the Koch-appeasing union-busting provisions.

In the meantime State Democrats have been mobilizing recall initiatives against the eight Republican State Senators who are so eligible and the Dems now claim they will meet the requirements — which are deliberately restrictive and entail collecting tens of thousands of verified signatures within 60 days — in several of those cases. If that proves true, then the "enthusiasm gap" is reclaimed.

Another candidate on the April 5 ballot is the conservative incumbent Supreme Court Justice David Prosser, who tends to form majorities with his three most dedicatedly right-wing colleagues. Prior to his appointment to the court by a Republican governor in 1998, Prosser was a career Republican politician, for a time presiding over the Wisconsin State Assembly. Facing three roughly ideologically equivalent challengers in last month's primary, Prosser managed 55% of the result based on a turnout of only 9.3% of eligible electors.

The two Scotts Walker and Fitzgerald's late night hijinks are undoubtedly rousing the other 90.7% who, according to even conservative pollsters, are overwhelmingly not disposed to look kindly upon Walker's hard-right performances nor anyone perceptibly associated with him, including both Jeff Stone and Justice Prosser.

Whoever wins the Supreme Court election takes office August 1.

WISGOP trying to stiff learned counsel Bob Jambois

Yet they forked over $27K to James Troupis for sheer nonsense.

Even Scott Fitzgerald called Troupis's legal advice "comical."

And Scott Fitzgerald hired James Troupis.

Pay the man. He was stellar and earned every dime. Those very Republican legislative leaders Scott and Jeff Fitzgerald instigated this litigation when they violated the Wisconsin Open Meetings Law.

Robert Jambois on the web.

Jeff Fitzgerald, who is running for U.S. Senate, said he thought that may mean the Assembly does not have to pay the bill, though he did not spell out his legal rationale on that point.

Who will explain it to Jeff Fitzgerald if he's just going to stiff them.

Prosser's conduct: Next steps

One Wisconsin Now is filing an open records request to obtain any written and electronic communications between the four conservative justices, David Prosser, Mike Gableman, Annette Ziegler and Patience Roggensack, and Scott Walker's office, the office of Mike Huebsch, and Scott and Jeff Fitzgeralds' offices.

You can visit the link to chip in a few bucks.

Walker wasn't a named party to the so-called "supervisory/original" action that the Supreme Court heard and decided but Deputy Attorney General Kevin St. John admitted — reluctantly — under questioning from the Chief Justice that it was indeed Scott Walker who instigated the petition. Mike Huebsch is Walker's Secretary of Administration who made the notorious estimate of $7.5 million to repair "damage" to the State Capitol building in the wake of demonstrations in February and March.

The actual figure turned out to be just over 100 grand, and even that included for repairs to existing wear and tear from years gone by, some of which was caused by people in wheelchairs. Assembly Speaker Jeff Fitzgerald, brother of Scott, is reportedly running for the U.S. Senate.

At least, that's what the Wausau Daily Herald editorial board said Fitzgerald told them. But then a spokesman for Fitzgerald said it would be against the law for Fitzgerald to say that. Not like the law prevented WISGOP legislative activities in the past, which the four "conservatives" on the Wisconsin Supreme Court said was perfectly fine with them.

Fitzgerald suddenly appalled at presidential politics

Big Fitz speculates:

"Is this going to be a fight that ultimately is going to be OK'd by the White House and is President Obama involved in it and really is this about Wisconsin being ground zero for the president?" Senate Majority Leader Scott Fitzgerald said. "If you see 30, 40 million dollars dumped in, you know it's about presidential politics and not just about recalling Governor Walker." — WisPolitics

Perhaps Scott Fitzgerald has forgotten he revealed to Fox News in March that the WISGOP agenda was devoted to thwarting Obama's reelection chances in Wisconsin. Or else he hopes others have forgotten. In either event Sen. Fitzgerald certainly has no grounds to complain about it now.

After all, he started it. No crying towel for him.

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.

Do you live in fear, Jeff Fitzgerald?

In this video clip, Wisconsin Assembly Speaker Jeff Fitzgerald explains why allowing handguns inside the State Capitol is an awesome plan:

I would rather have law abiding citizens that go through a course be able to protect themselves than just have somebody up in the gallery that would be able to do currently what they are. We've heard from the other side of the aisle they want this building to be open and for the public to be there so if that's the case we also want people to be able to come in and protect themselves.

Protect themselves from what, he won't say. And what the people in the gallery are doing currently is holding small signs bearing text from the Constitution. So CCW is for people to protect themselves against that, apparently. Therefore does the Second Amendment guarantee you may wander around the Capitol building carrying a concealed, loaded handgun but not one whose barrel is inscribed with the First Amendment.

Jeff Fitzgerald's illogic is emblematic of conservative Republicans' attempt to accurately characterize the people of Madison: the WISGOP can't decide whether their adversaries are pot smoking hippies or violent psychopaths. It depends what day it is, and which is more convenient.

Jeff Fitzgerald is currently running for the United States Senate where, it's true, he would make the complementary bookend to Ron Johnson.

h/t @Progress2day

Oh, and according to Department of Administration Secretary and sometime Royal Estimator of Damages Mike Huebsch, handguns are not allowed in State mental health facilities, so you can't carry where there are actual psychopaths, but only where there are GOP-fantasized ones.

Moreover, Mike Huebsch justifies the new weapons policy by pointing at Wisconsin's "strong hunting culture and sporting heritage." I suspect most places share those traditions, but what they have to do with concealed, loaded handguns in public galleries at the State Capitol is anyone's guess.

While I admit to not fully comprehending the gun culture, I fail to see how armed citizens — complete with spare clips of ammo, as I read Secretary Huebsch's official directive — monitoring the deliberations of elected officials are a flattering reflection on responsible shooters.

FitzMeeting held within 120 minutes +/- three

That's even a pretty wide tolerance for rebar

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

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

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

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

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

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

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

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

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

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

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

Closing statement on Fitz Van Walker arrogance

For the record, Tuesday, March 29, in the Year of our Lord 2011:

I'm frankly surprised to hear the attorney general's office indicate that they considered the previous [temporary restraining] order to be in effect since, as near as I can tell from having read the newspaper, the Department of Administration and the Senate president seem to be proceeding under the assumption that they are not restrained, that there is no order enjoining the further implementation of this Act. So I don't know what it takes for the court to communicate to the attorney general's office in a way that is sufficiently effective to alert them to the fact that there is to be no further implementation of this legislation until this court has ruled on whether or not a permanent injunction is to issue. I had thought the court had ruled last time [March 18] that there was to be no further implementation. I had thought the court had ordered last time and made it very clear that the secretary of state was not permitted to issue a date of publication. The secretary of state acted in furtherance of the court's order and everybody else who was apparently, I presume, taking advice from the attorney general was acting in violation of the order.

— Robert Jambois, atty. for Assembly Minority Leader Peter Barca

The hearing continues Friday* and it is not going well for JBVH & Co.

Mostly because their case is threadbare and they're reduced to simply objecting to all evidence save the courtroom's wallpaper and drapes.

And frequently demanding recesses and adjournments, each of which was denied. Whether those demands are designed to forestall the inevitable or buy the Walker administration more time to unlawfully enforce its allegedly non-fiscal budget "repair" bill, who knows.

The most oft-repeated word they heard today was "overruled." JBVH attempted to rescind his motion to the court of appeals after it was already certified to the Supreme Court and his agent in circuit court, assistant AG Lazar, flagrantly contradicted the legal arguments set out in JBVH's paper filings (again). "Train wreck" springs to mind.

I don't hold it against AAG Lazar, however, as she appears to be doing the best she can with what she's got, and that ain't much.

The court has yet to declare or reach the question of whether "2011 Wisconsin Act 10 has not been published, within the meaning of the Wis. Stat. §§ 991.11, 35.095(1)(b),** and 35.095(3)(b)." But it will.

* April Fools Day, the third anniversary of Mike Gableman's election.

** 35.095(1)(b) defines: "'Date of publication' means the date designated by the secretary of state under sub. 3." These are precisely the statutory provisions discussed at this blog below. In other words, the court will frame its disposition to the question of whether the Act has taken effect just as did the approach here.

Prophecy, is what Oliver Wendell Holmes, Jr. called the law.

Obviously your humble correspondent concurs.

eta — From the Milwaukee Journal-Sentinel:

Marquette University law professor Richard Esenberg said he was not surprised by the ruling but criticized the judge.

That is so emblematic of the depressingly predictable right-wing response pretty much in its entirety, with their standard ad hominem fallacies. What constructive purpose they serve, I have no idea. Prof. Esenberg likes his WWII-vintage case, but a number of things have changed since then, like, the enactment of the Open Meetings Law, which enshrines several guarantees to the public tied directly to the State constitution, which trumps any dusty old case (esp. pre-1901).

Having followed the bulk of the hearings so far, it's clear Dane County Judge Maryann Sumi is aware of Esenberg's concerns, has relegated them to their proper place of relative insignificance, and is admirably conducting a complicated proceeding while owing no duty to communicate to the right-wing professor of law her every rationale.

Speaking of duties, does not the Journal-Sentinel have a duty to disclose the fact that Esenberg has lately been acting as counsel to Republican Senate leader Scott Fitzgerald? Prof. Esenberg was among the Republicans-for-hire attorneys who filed suit on behalf of the Oconto County GOP chairman, a suit they had to know was frivolous, seeking an ancillary statement from the judge which they did not receive but claimed they did in a memo to Fitzgerald, which memo Fitzgerald used to bolster his ridiculous ersatz "arrest warrants" issued against 14 of his Senate colleagues (all Democrats, naturally).

The legal memo advised Big Fitz he could direct law enforcement officers to have a six-months-pregnant woman*** seized into physical custody and "carried ... feet first" across the Senate threshold.****

Fitzgerald in turn acted on the basis of that advice.

More recently Esenberg deposited a risible piece of propaganda at NROnline shilling for the conservative Justice David Prosser, which begins by misattributing to Jean-Paul Sartre a sentiment delivered by a character in one of the philosopher's anti-Communist plays.

By Esenberg's reasoning Shakespeare was a bloodthirsty murderer of Scottish lairds and Sam Shepard an intellectually challenged hillbilly.

Prosser, alleges Esenberg, is a "moderate conservative" because he once in awhile does not join a hard-right three-justice bloc and who "received overwhelming public support in his election to his current term" without mentioning that Prosser was the only candidate on the ballot. Yet if you read the Journal-Sentinel, you'd think Esenberg was some detached academic, which is far, far from the actual reality.

*** Who had done nothing whatsoever unlawful.

**** Face down or face up was left to Big Fitz's wise discretion.

Big Fitz caught lying and the 2nd Amend. amended

Astounding! And amusing because Scott Fitzgerald, brother Jeff Fitzgerald, and Fitzgerald père are all living on government handouts.

A bunch of un trained yahoos, being necessary for the security ...

Meanwhile the younger Fitzgeralds are part of Republican caucuses in the Wisconsin legislature that insist it's "essential" (absolutely necessary; central to the nature of something; fundamental) concealed, loaded weapons are carried around nearly everywhere in the Badger State (the WISGOP thoughtfully exempted jails and prisons, although Scott Walker said he'd sign any gun bill that passed the legislature, according to an internal memo Walker's policy director Ryan Murray had "fired off").

Supporters of the proposal call themselves the "constitutional carry" crowd. However, "well regulated" must mean something and it can't possibly mean any person who's never even handled or fired a weapon is good to wander around Summerfest with a loaded Glock in their pants.

Yes, that sounds really "necessary to the security of a free [S]tate."

And no public safety issue whatsoever.

Apparently they're advised on constitutional law by Ron Johnson, where "well regulated" means "no regulations nor requirements whatsoever."

The Journal-Sentinel story on the gun bill contains repeated references to "recall targets" which bring to mind Sarah Palin's celebrated "crosshairs" advertisements. However, these shouldn't raise any eyebrows because untrained, unpermitted, loaded concealed firearms-bearers wouldn't be able to hit the damn broad side of a barn anyway.

But they surely could hit some unintended target (including themselves, which at least would put them in contention for a Darwin Award).

Esenberg "carried ... feet first" from Capitol

Figuratively, at least:

You know, I was befuddled by the professor's opinion. Assuming that the professor got the map and the data at the same time we all did, assuming he had ready experts who could manipulate the GIS data and what they call the geoshapes, it is astounding to me that the professor, with such superficial information — and assuming the information is the same information I have — it is astounding to me that that professor could come in here and render a legal opinion on such a flimsy basis. As a responsible lawyer, adhering to the ethical standards that govern my trade, I could not sit here and give you a legal opinion because I don't know. And I'm telling you, you don't know either.

— Peter Earle, response to committee inquiry at 9:32

Ouch. That's got to leave a mark, as the kids say.

Ubiquitous Republican-for-hire lawyer James Troupis despatched sometime co-counsel Rick Esenberg to Madison yesterday to pronounce definitively that the WISGOP plan "is simply not vulnerable" to legal challenge and that "any challenge to the plan would be almost frivolous."

Funny, because it was none other than the team of James Troupis and Rick Esenberg that filed an "almost frivolous" suit on March 1 in Oconto, the misrepresented fruits of which became the basis for Troupis's notorious legal memorandum advising Republican Senate Majority Leader Scott Fitzgerald to have apprehended and forcibly conveyed by law enforcement a seven-months-pregnant woman into the Capitol building.

Along with 13 other of Senator Fitzgerald's political rivals, for all of whose arrests Sen. Fitzgerald had issued warrants, following which Troupis promptly invoiced the State the sum of twenty-six thousand, nine-hundred-and-fifty-five dollars. Meanwhile Rick Esenberg continues to be presented as a disinterested academic observer in the local press.

I'm trying to put, at least in perspective to me, I just want to make sure I have the right person, the same professor who comments on Christian radio, conservative radio talk shows, and blogging? — Wisconsin State Senator Jon Erpenbach

And Fox. Yes, that's our Prof. Rick of Marquette University Law School.

Scott Fitzgerald, he's working for all Wisconsin

Hey Jon Bruning, Big Fitz swallowed your truth serum:

On or about March 9, 2011, State Senate Majority Leader Scott Fitzgerald (R-WI), publicly stated that the changes to the collective bargaining law were about eliminating unions so that "the money is not there" for the labor movement and to make it "much more difficult" for President Obama to win reelection in Wisconsin. — Madison Teachers v. Scott Walker, Compl. at ¶ 23.

There you have it, folks. Scott Fitzgerald sold you down the river.

ASSGOP leader Jeff Fitzgerald blows it

Successful vote would moot the court case

Republicans: We will add collective bargaining to budget if court doesn't act by Tuesday — Wisconsin State Journal

If there was any lingering concern that the Wisconsin Supreme Court exercising its supervisory authority over Dane County Circuit Judge Maryann Sumi would be, at this point, itself an inappropriate judicial intervention into the affairs of the political branches, Assembly Speaker Jeff Fitzgerald just sealed the deal. There ain't no turning back now.

If the court "rules," it looks like just pure Republican politicians.

And isn't voting what Judge Sumi's been telling the Bros. Fitzgerald to do for months? Yes, yes it is. So why didn't the Bros. do it months ago?

They sure could have saved everybody a lot of grief, and expense.