April 6, 2009

Koschnick completes rejection of coherence

The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose.
Wis. Const. art. I, § 25

Any person except a peace officer who goes armed with a concealed and dangerous weapon is guilty of a Class A misdemeanor.
Wis. Stat. § 941.23
For his third article in as many days helpfully stumping for Jefferson County Circuit Judge Randy Koschnick, the Milwaukee Journal-Sentinel's Steven Walters adds yet another contradiction to Koschnick's so-called "judicial philosophy." A very large one.

Here we find Koschnick grousing about Chief Justice Shirley Abrahamson's dissenting opinion in State v. Hamdan, a 2003 decision of the State Supreme Court in which Abrahamson did exactly what Koschnick is more typically complaining about her not doing: applying the law "as written" and refusing to "legislate from the bench."


Hamdan addressed the extent to which the constitutional provision reproduced above in its entirety implicated Wisconsin's carrying a concealed weapon statute, also reproduced above in its entirety.

But in Hamdan, a majority of the court effectively rewrote the CCW statute, creating by judicial fiat two exceptions for persons in their "private residence[s] or privately operated business[es]."

For months Koschnick has been going about calling himself a "strict constructionist" and promising not to "legislate from the bench."

In Hamdan, not only did the majority refrain from strictly construing the CCW law under the particular facts presented, it "legislated from the bench" by creating exceptions to the statute so as to prevent it from being applied against the defendant, Munir Hamdan.

And despite the Journal-Sentinel's wildly misleading headline — "Candidates clash over gun ownership" — Abrahamson's dissent has nothing whatsoever to do with gun ownership. It barely has anything to do with guns at all, let alone evincing "a hostility to gun owners," the latest in a continuing series of Koschnick's ridiculous charges.

Rather, the Chief Justice's Hamdan dissent is a more or less academic exercise in statutory construction, the question of how and when a statute violates the constitution, and the proper role of the courts with respect to their relationship to the legislature.

That it happens to involve a handgun is purely a matter of convenience to Judge Koschnick's partisan political agenda, and he's apparently willing to abandon his commitment to his own "judicial philosophy" in order to exploit it.

Moreover, it's Chief Justice Abrahamson's dissenting opinion that embodies the twin hallmarks of Koschnick's own oft-articulated "judicial philosophy": reading the law "as written" and a refusal to "legislate from the bench."

In his pants

The majority agreed that Hamdan, by carrying a concealed handgun wrapped up in his pants pocket, broke the law:
During the time that Hamdan came from the back room and engaged in conversation with the police officers, he was going armed with a concealed and dangerous weapon. Because the jury concluded that Hamdan was aware of the weapon's presence and that the weapon was hidden or concealed from ordinary view, we conclude that Hamdan violated the CCW statute.
The majority also determined that the CCW statute itself "on its face" does not violate the Wisconsin constitution.

But, reacting to the particular circumstances of Hamdan's case, the majority created two more exceptions to the statute and then proceeded to apply them to those circumstances in order to reach its determination that the application of the CCW statute was unconstitutional in Hamdan's particular situation.

In doing so, the court substituted its judgment — which included a considerable amount of not only speculation but internally contradictory speculation — for that of the legislative branch.

As Abrahamson pointed out, if the court believed that those exceptions were lacking from the CCW statute, then it must find the law unconstitutional and return those questions to the legislature, whose business it is to create such exceptions, a regular feature of legislative provisions (note, e.g., the "peace officer" exception).

This is not "activism." Quite the opposite. This is mindfulness of the constitutional separation of powers and deference to the accepted roles of those separate branches of government, which is precisely what one hears Koschnick rambling on about constantly.

The court shouldn't create additional exceptions in statutes — nor has it the power to — in order to save them from constitutional infirmity. But that is exactly what the majority did in State v. Hamdan.

In short, if Judge Koschnick really did have a coherent and consistent "judicial philosophy," then he would be praising and not criticizing Chief Justice Abrahamson's State v. Hamdan dissent.

And assuming there really is such a thing as "legislating from the bench" — "legislating" being a term of art which describes a process not possible to perform "from the bench" — then the majority's reasoning in Hamdan counts among its definitive exemplars.

A theory twice rejected

Meanwhile, and perhaps most tellingly of all, Koschnick is quoted* in the Journal-Sentinel as saying that "what happened here" (in Hamdan) involved "gun rights - including self-defense," even though "defense" is a separate purpose in the constitution that was never successfully argued in Hamdan.

In fact the court explicitly rejected Hamdan's argument that he had a statutory privilege of self-defense (see ¶¶ 29-37). More to the point, it also explicitly rejected Hamdan's appeal to the defense element of the constitutional provision:
Although Hamdan's conduct could arguably be construed as undertaken for the purpose of "defense," we think the circumstances logically point to the purpose of "security."
That is, "security" and "defense" are two separate purposes in the constitutional provision, just as are "defense" and "hunting" separate purposes. So much for "strict constructionism." Again.

But Steven Walters, apparently without detecting a hint of irony, reports: "Yet, Koschnick said, Abrahamson 'missed that.'"

All of which leads one to inquire — again — as to whether Koschnick has even read this decision. And if so, why the misrepresentation.

Because this is the same Judge Randy Koschnick who admonished the Chief Justice — of all people — that the task of describing the decisions of the courts "requires precision." That it certainly does.

So, I can't help wondering: What in the world is a self-proclaimed "more qualified" candidate for the Supreme Court doing describing an opinion of that court as the validation of an argument which a majority of that very same court expressly rejected?

And rejected not just once but two times!

For Judge Koschnick to point at Chief Justice Abrahamson's dissent in State v. Hamdan as providing support for his own continuously advertised status as a "strict constructionist" and his own promise not to "legislate from the bench" is, in a word, ludicrous.

It's no surprise, then, that less than 20% of Wisconsin's registered electors turn out to vote in Supreme Court elections. The rest of them are probably weary of having their intelligence insulted.

* "When they amended the state constitution in November 1998, Wisconsin voters made it clear they want 'pretty broad gun rights - including self-defense,' Koschnick said. 'That's what happened here.'"

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