March 29, 2011

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.


gnarlytrombone said...

Esenberg was on Joy Cardin this morning saying the LRB muse be compromised by DFHs because it isn't towing the party line in its statements.

misattributing to Jean-Paul Sartre a sentiment


illusory tenant said...

Lot of it going around, then.

Art Hackett said...

What do you make of the judge's last minute deletion of the paragraph stating that the LRB action doesn't constitute publication?

illusory tenant said...

I make it prudent and judicious. She's not done hearing testimony and argument on that question yet.

gnarlytrombone said...

last minute deletion of the paragraph

The commenters at Volokh are having a conniption over this. As I understand it, Sumi requested suggestions for amendments to the original order, and the deleted paragraph was Ozanne's, no?

illusory tenant said...

I believe so. But she didn't delete it -- struck from the document and initialed, to be precise -- because those statutes are not the correct path to the solution. She struck it, for now, because she hasn't got to that question yet.* Hence the prudence and judiciousness.

But Ozanne has the right idea -- the Kinko's Amendment theory -- and JBVH's office can do little in rebuttal except object, obfuscate, stall, contradict itself, etc.** But those hijinks will come to an end soon enough.

* In truth it's the question that needs to be decided before the subjects of Ozanne's prior complaints.

** Watch the DOJ vacillate between insisting they're effectively representing La Follette's authority and denying that he has any authority at all. It's a hoot. Hell I'd fire 'em too.

Unknown said...

I have a question I'd like to pose to Mr. Foley or others. I'm convinced, as you argued in one of your previous posts, that the OML doesn't conflict with Senate Rule 93, in which case the OML was violated.

I decided to look at the Goodland v. Zimmerman case mentioned by Mr. Esenberg, though, and I'm also inclined to go along with his reading of it-- namely that a judge can't enjoin the SoS or the LRB from publishing a law, since the act of publication is considered part of the legislative process (this is specifically mentioned in Goodland) and separation of powers (probably a higher constitutional principle) restrains the judicial branch from involving itself in the legislative process. Here's the most relevant quote, I think, from Goodman: "no court has jurisdiction to enjoin the legislative process at any point." I'm no lawyer, but I'd be inclined to think that the enforcement provisions of the OML can only be used once a law is in effect. Anyhow, my question is just if you have a counterargument to the application of Goodland I've indicated above. Of course, it may well be irrelevant if it is eventually ruled that there was an OML violation. Thanks for your time.

Jeremy R. Shown said...

What was the Sartre bit? Hell is other people's blogs?

Since you mentioned him, how Holmes-like is Sumi anyway? Once we get past the TRO sideshow are we going to get more general proposition or concrete case? Does Sumi believe men make their own laws or not?

illusory tenant said...

Jason, short answer, Esenberg's horses have sadly all left the barn. The landscape is substantively altered since Goodland for several reasons, most importantly the OML, which expressly authorizes the DA to seek injunctions, expressly refers directly to the constitution, expressly requires the legislature to comply with the OML "to the fullest extent" (the AAG admitted in court March 18 there was "maybe" only 1h and 57m notice of the committee meeting given), and expressly directs courts that the OML's statutory framework is to be "liberally construed."

These are far more important considerations for Judge Sumi than Goodland, another point the AAG conceded on March 18, when she announced that the judge was "absolutely correct" to accord greater weight to the foregoing express legislative commands than to accept the AAG's own argument that the court was barred from "intermeddling" in the legislature's procedural minutiae (and this is clearly not merely procedural minutiae the Bros. Fitz were tinkering with here).

Esenberg should instead go chase and lasso the horse that is the AG's office's disastrous handing of this case, which the AG all but forfeited on March 18. That's why Judge Sumi issued the TRO. She pretty much had no other choice, given the totality of circumstances.

gnarlytrombone said...

"Does Sumi believe men make their own laws or not"

LOL. Sounds oddly like a deodorant commercial.

Anonymous said...

The disasterous handling of this case seems to chiefly be the fault of Judge Sumi rather than that of either counsel.

illusory tenant said...

Feel free to elaborate.