A couple of questions for Justice Pat Roggensack

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

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

"[W]hen a citizen votes in a judicial election, he or she exercises a right guaranteed under the First Amendment of the United States Constitution."

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

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

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

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

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

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

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

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

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

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

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

Roggensack to complement law enforcement

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

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

Court amended statutes, admits Roggensack

[T]he statutes applicable to the [Wisconsin] Judicial Commission have been amended ... by this court several times.

Wowee. Some conservative huh?

Who's endorsing Roggensack for justice

This fevered character, for one:

[Milwaukee County Sheriff David] Clarke went on: "That's what the government fears. They don't really fear the criminal. They support the criminal after they've been arrested. But what they fear is a law-abiding person ... "

Um okay whatever dude. #tinfoil

Wisconsin's other other Bradley

Below "Judge judicial candidates on the merits," appears this:

Honestly, I’ve never even heard of Gil [Urfer] or Janet [Protasiewicz] before this election, so I can’t say much about them — good or bad.

So much for judging them on their merits, then.

The incumbent, Republican Scott Walker appointee Rebecca Bradley, describes herself as a "nonideological" member of the Federalist Society, which is an organization of malcontents and paranoid hysterics with law degrees that was founded on political ideology.

Kinda like being a Milwaukee Admiral but you don't play hockey.

Justice Roggensack is hardly a conservative judge

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

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

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

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

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

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

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

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

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

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

* The primary election is Tuesday, February 19.

The only conservative on that ticket is Ed Fallone.

Roggensack foolishness is mostly true

Judge Charles P. Dykman, who retired in 2010 after 32 years on the appeals bench, said it was "foolishness" to equate complex cases heard by three-judge panels with minor summary disposition cases in which the appeal often lacked merit.

Nevertheless, "Mostly True" despite the foolish premise.

Must be legal logic.

Fierce Walker appointees stall Prosser prosecution

Reports Patrick Marley:

Franklyn Gimbel said Thursday he has given other options to the Judicial Commission on how to proceed with the case, but he was told not to pursue any of them for now. . . . Since Gimbel began work on the case, the makeup of the commission has changed so that it is now controlled by Walker appointees.

I call that an "appearance of impropriety," a legal concept for which several of the Wisconsin Supreme Court justices show little regard.

Read the whole story. It's amazing.

Some legal observers said the effort should be directed at the chief of the appeals court, because State law says those courts' chief "shall select the judges" on the judicial panel and does not specify a role for the Supreme Court in establishing the panel.

I suspect one of them may have been me.

P.S. Where's the Gableman prosecution(s) at?

Ed Fallone on Wisconsin Eye

This is about 28 minutes, as they say on C-SPAN.

Scott Walker, competent man of business

"Wait, you have people on this board of directors who aren't reading financial statements and don't have a clue about how internal controls work?"

Scott Walker is chairman of the WEDC board.

A career politician with zero business experience.

"The result [of Appling's logic] is nonsense."

Been saying that for years meself now here's the Wis. Ct. App.

Edward Fallone for Wisconsin Supreme Court

Fan of the blog* makes it official

 * Hope that doesn't ruin his chances.

Why couldn't Ron Johnson book better gigs?

Obamacare is the law of the land. There's little Johnson can do about it. This pretty much voids his raison d'être in the Senate.

The Chief.

You're an errand boy

Sent by grocery clerks to collect a bill.

(l-r) Scott Walker, Roggensack campaign advisor Brandon Scholz

Waukesha County GOP victim impact statement

"At this point, I can't drag her back kicking and screaming."

That's Waukesha County District Attorney Brad Schimel, referring in court to an alleged victim of domestic violence, believe it or not.

Don pridemore for, Superintendant of edukashun

Jeebus.

h/t Lisa Mux.

Wisconsin Supreme Court footnote

What Dane County Circuit Judge Maryann Sumi enjoined in the spring of 2011 was the publication of Act 10, and not Act 10 itself nor any of its provisions (the "substance" of the law). Act 10 had already been enacted. The legislative process was completed. There was nothing left for the legislature to do. What remained for Act 10 was purely administrative. Bear that in mind during the inevitable storm of right-wing bullshit* should Judge Sumi decide to run against Roggensack.

* The Bradley Foundation's publishing house has started already.

Wisconsin Supreme Court Justice seeks reelection

Patience Roggensack also noted she is the only justice with the court who previously was a state appeals court judge.

Where she affirmed one potential challenger 12 times out of 13.

"Joy's producers look for knowledgeable guests."

Fruitlessly, it would appear.

Scott Walker's Judge Bradley (Foundation)

Reports the local organ:

Scott Walker on Monday appointed president of the Milwaukee chapter of the Federalist Society Rebbeca [sic] Bradley to fill a spot on the circuit court bench in Milwaukee County.

Obviously.

Q. What is your favorite website?
A. NationalReview.com

Dear God help us, here comes another one.

Jim Troupis, professional Republican concern troll

Here we go:

Troupis was disappointed Judge Sumi is considering a run. "It's obvious she was talked into it because of Act 10," Troupis said. "It should be about competence and qualifications, and clearly the only purpose of her running is to open that pro-union stuff."

What a dyck. And I'm sure Sneerin' Rick Esenberg won't be far behind.

Meanwhile have some facts, not foolish, condescending speculation:

Judge Roggensack affirmed Judge Sumi 12 out of 13 times

Now this is my kind of Wisconsin election

Judge Maryann Sumi seriously considering Wis. S. Ct. run

Bring it.

Wisconsin Act 10 again

Excellent commentary on Friday's decision here.

Compare Gov. Scott Walker's "statement in reaction." Pathetic.

Gableman flack profiled

In the Wisconsin State Journal:

Some Republican operatives contacted by the State Journal criticized Schmitz, specifically regarding the Gableman incident, but none of them would go on the record.

Why not? The Gableman "incident" was so sleazy by any objective measure, who could possibly fear retribution for criticizing it?

What a bunch of babies.

Photo of the week

Tales of Republican Christianity

Cock crowed thrice weekly — "with children nearby"

Conservative moral guardian enjoys whacking off at public park

Rep. Paul Ryan's bucket of warm piss

He prefers it to his constituents, or so Rob Zerban should tell them.

Gableman scratches self

Despite there being nothing to disqualify himself from:

I disqualify myself from participation in the matter.

That makes four of seven. Now what.

"I guess I need the maps."

Wouldn't you need the maps before you consent to "bless" them?

What are they running over there, a law school or a WISGOP PR firm?

Well well what have we here

Some of the emails appear never to have been released before.

Wisconsin Republicans fought tooth and nail to keep this correspondence out of federal court, to the point of Eric McLeod being personally fined, and these emails went straight to the heart of the issues under litigation so it's difficult to believe they were overlooked, especially as they represent a contentious disagreement between the lead attorneys.

You thought those judges were pissed before.

Wait until they get a load of this.

Wisconsin Judicial Commission hates Dave Prosser

"Oh my God I'm touching her neck."

"If I hated you and wanted to cause you as much grief as possible, if you are not independently wealthy, the best way to get you is to get you to eat up your assets," Prosser said.

Or file a complaint because you put your hands around a woman's neck.

Nah, that couldn't be it.

'A new low for Wisconsin'

Can you imagine.

'Trash, just that, trash.'

Janice stated she was familiar with Ottelien.

And it's all downhill from there: Hilarious.

Eric Hovde is to geology

As Ron Johnson is to the Constitution.

This guy is a real piece of work.

And if Hovde calls this the solution to high gas prices whereas oil shale makes poor feedstock for gasoline, why isn't his claim completely false?

ETA: More Hovde

Prof. Rick's Freud slipped here

Law professor returns to his eager defenses of Mike Gableman:

We might say that "free legal services' is — deliberately or accidentally — not a complete and accurate description of the free arrangement at issue.

We knew it was a free arrangement all along. It's pleasant to see Mike Gableman's stoutest cheerleader finally acknowledging that fact.

He goes on:

I am also confident that Justice Gableman understood the nature of the arguments being made for his recusal and, in fact, made clear that he based his decision on "the circumstances of the case ... and the submissions of the parties."

'Because he said so,' offers Prof. Rick of Gableman, who doesn't exactly enjoy a reputation for honesty, having been prosecuted by the Wisconsin Judicial Commission for lying about another judge's professional record.

If Prof. Rick is so confident now that Gableman "understood the nature of the arguments being made," where was his confidence that Gableman understood the procedural history of State v. Reuben Lee Mitchell?

If Prof. Rick's level of confidence in the latter equaled his present confidence in Gableman's profound understanding, then Prof. Rick would have to admit that Gableman knew full well that he was baldly lying during his political campaign in 2008. But you'll never hear that from Prof. Rick, whose own partisan expediencies regularly trump whatever pretense to principled scholarship he's apparently duped the Journal-Sentinel into accepting. That farce is worse than the sloppy writing.

Good for a laugh, at least.

Fiercely conservative* means never wimping out

'He said he would do what we were looking for.' — Career WISGOPer

Ironically, this latest escapade is directed at protecting a Wisconsin Supreme Court justice who is "emasculated" by his female colleagues.

* Translation: Fiercely partisan Republican, in keeping with the Judicial Commission's mandate to "maintain public confidence in the judiciary."

Uh huh.

"When they introduced themselves, three of the nominees referred to their long-term marriages as qualifications to serve on the Commission. One of these, Eileen Burnett of De Pere, spoke at some length of her experience as a homemaker and expert in abstinence education. What she didn’t mention was her record of donating $5,350 directly to Republican campaigns over the past eight years." — Rebecca Kemble

Introduction to logic with your host Robin Vos

[State Rep. Robin Vos] said he heard second hand that someone tried to use a Bed Bath and Beyond mailer as proof of address.

"Is that fraud? I don’t know. It isn’t right and it seems fraudulent. You tell me how that’s not a fraudulent vote."

That's a clown question bro.

Reminder — Gableman may be under investigation

Annals of the Peppercorn:

¹¹ The other forums may be the Wisconsin Judicial Commission and the Wisconsin Government Accountability Board.

He had better be.

More gems from the Chief Justice:

Justice Gableman’s Order, whether deliberately or accidentally, misconstrues the allegations against him . . .

Although Justice Gableman's Order claims that he "considered the circumstances of this case" and "the submissions of the parties," I conclude that nothing in Justice Gableman’s Order demonstrates that Justice Gableman actually considered the submissions of the District Attorney. Rather, because Justice Gableman's Order either intentionally or inadvertently misstates the grounds of the District Attorney's motion, the Order contains no reasoned basis for the Justice's conclusion that his recusal is "neither warranted nor justified."

The Order inaccurately asserts that the District Attorney seeks recusal because "the Michael Best & Friedrich firm was involved in the cases and had previously represented me." Actually, as I have stated previously, the District Attorney explained in the initial and supplemental filings that he seeks recusal not because Justice Gableman has been personally represented by Michael Best, but rather because Justice Gableman received allegedly free legal services from Michael Best.

Yet, nowhere in Justice Gableman’s Order is there any reference to payment (or absence of payment) for legal services, the fee arrangement with Michael Best, free legal services, a gift of legal services, or valuable consideration for the fee arrangement. None of these words, or any synonyms, appears in the Order.

In other words, the Wisconsin Supreme Court's so-called "conservatives" continue to rule by fiat and Mike "Peppercorn" Gableman hasn't changed a bit in terms of his "deliberate or accidental" misrepresentations.

After all, those are how Mike Gableman got elected in the first place.

However, those were more deliberate and deliberative than accidental misrepresentations, as Mike Gableman himself admitted. Indeed if they were accidental misrepresentations then failure to understand a relatively straightforward appellate case should have disqualified him from the State of Wisconsin's highest appeals court right off the bat.

Wisconsin Republicans must be real proud of this character. But nobody else should be proud of what he's done to the reputation of this court.

Follow the PolitiFact logic

PolitiFact grants Willard "Mitt" Rmoney a "Mostly True" for misrepresenting a decision of the Supreme Court because Rmoney is a politician: "PolitiFact focuses on political speech rather than legal speech and judged by that standard Romney is pretty close to accurate."

Haha. Can you believe that? What difference does it make who said it?

If it's false it's false.

Earlier: WSJ calls both the payment and the penalty taxes

The Wall Street Journal is having an Rmoney sad

Lament the hosts of their own Fox "News" teevee show:

[Willard "Mitt" Rmoney] is managing to turn the only possible silver lining in Chief Justice John Roberts's ObamaCare salvage operation—that the mandate to buy insurance or pay a penalty is really a tax—into a second political defeat.

First of all, the Supreme Court didn't say that buying insurance was a tax. And it barely said the penalty for not buying insurance was a tax, only that the penalty was a constitutional exercise of Congress's power to tax, and one that was well supported by a host of federal precedent.

As the Chief Justice put it for one majority of the Court:

Although the payment will raise considerable revenue, it is plainly designed to expand health insurance coverage.

And what the WSJ editorial mandarins refer to as a "salvage operation" was in fact an exercise of the Court's deference to the will of the elected legislature, the exercise of which in other circumstances Republicans who claim to be "judicial conservatives" rejoice over.

This time they just don't like the result that it led to, in the latest example of why such claims to "judicial conservatism" are fraudulent.

Anyway this sad WSJ editorial is a fun read for reasons other than its inept characterization of the Court's health care reform decision.

Why the gun-totin' DA's petition was denied?

That I don't know.

Perhaps because the gun law has three exceptions to the prohibitions on carrying, and the law says "any" of them apply. In one exception, the law says a judge has the power to grant — or not grant — permission to conceal-carry licensees and in another exception the law says a DA can conceal-carry in court.

Because "any" of the exceptions apply, the judges chose the one that inconveniences the DA, and the judge has quite a bit more stroke in the courtroom than has the DA. For example a judge can tell a DA in her courtroom to sit down, be quiet, stop being such a dick, etc.

The Supreme Court wrote just a few months ago that a petition for a supervisory writ won't be accepted unless the lower court's duty is "plain" and the alleged violation by the subordinate court judge is "clear."

I don't think either of those elements are present here.

Furthermore if the court did accept this petition, it would potentially be in the position of having to contradict itself on the questions of supervisory and original jurisdiction — these are two separate grants of power to the court in the Wisconsin constitution and the Wisconsin statutes — for the third time in roughly one year.

What I find amusing is that the court combined these two separate grants of authority in its Act 10 decision in June, 2011, and a few months later laid down the law with respect to the high burden — the "clear" and the "plain" bits — of establishing its supervisory jurisdiction, which the "conservative" majority itself clearly had not done in the petition against Dane County Circuit Court Judge Maryann Sumi.

The attorney(s) who drafted this petition recognize the distinction between supervisory and original jurisdiction, hence the "or in the alternative" language and the separate references to 809.70 and 809.71 (the distinction between which was also discussed at this blog pursuant to some nonsense that was published at the Marquette Law School Faculty blog by a young Federalist Society pinhead).

More on all of that behind the links in the post [below].

Wisconsin Supreme Court title block of the day

Denied:*

PETITION FOR SUPERVISORY WRIT PURSUANT TO WIS. STAT. § 809.71 OR IN THE ALTERNATIVE FOR THIS COURT TO TAKE ORIGINAL JURISDICTION PURSUANT TO WIS. STAT. § 809.70

Not effing both.

Petitioners ... must therefore go unarmed from their offices to the courtrooms, through public, unsecured areas.

The poor sods. They must be frightened out of their respective wits.

See also: 809.70.

* "[P]rior to the commencement of this supervisory writ/original action[**] proceeding ... District Attorney Gossett submitted to Justice Michael J. Gableman a memorandum, dated February 6, 2012 ... "

Which got neither of them anywhere.

** Now that is some sly joke, what with the forward slash.

They chose to rely on prayer

Killed by religion:*

Leilani Neumann noticed that her daughter was very tired, but nobody believed she was suffering from a serious illness.

Yet they did believe the child, who died two days later, was "under spiritual attack" and medicine would "be taking the glory from God."

Certification by Wisconsin Court of Appeals (and acceptance).

* Or alternatively, libertarianism.

You are hereby notified of the following order

[T]he judicial discipline statutes, Wis. Stat. § 757.81 through § 757.99 (2009-10), do not require this court to act at this stage in the proceedings. . . . At this point, the statutes direct the chief judge of the court of appeals to select a judicial conduct panel.

— N. Patrick Crooks, J. (emphasis added)

So why doesn't he?

Earlier: Patience Roggensack Prosser's latest recusal target

Charlie Sykes & Company

Buffoons as usual.

Justice David Prosser just making stuff up again

Prosser maintains panel formation takes a formal order from the court

Baloney.

Immigration quote of the day

Rick Esenberg, in the Milwaukee Journal-Sentinel:

"If you are not here illegally, you ought to go back."

This after criticizing the "incoherance" of the immigration debate.

I kid you not.

Perfunctory order

What the hell is a perfunctory order?

There is no such thing.

Obamacare: Liberals in denial

Liberals in denial.

I'm just sayin'. Brace yourselves for Thursday.

Busted

Priceless. 'Twas more than a peppercorn, apparently.

Go Scot. That's me boy.