April 15, 2011

The strange case of Kilkenny v. Sumi

Oy vey, the things you find on WisOpinion sometimes.*

Top conservative blogger Cindy Kilkenny of Brookfield, Waukesha Co., Wisconsin reckons she's pulled one over on Dane County Circuit Judge Maryann Sumi. "Sumi continues to make up the law as she goes along," announces Kilkenny. This is not gonna end well for CK.

The "fairly conservative" blogger Kilkenny objects to a passage in Judge Sumi's ruling yesterday in Kathleen Falk v. Fitzwalkerstan,** which is a separate action from the ongoing Ozanne v. Fitzgerald, the latter being much discussed at this here space and elsewhere. For it was in Ozanne that Judge Sumi issued her celebrated (and [fairly] conservatively reasoned) temporary restraining order against the Fitz Van Walker consortium's twilight union-smashing shenanigans.

Judge Sumi (bestest judge name evar) wrote on April 14:
[§§] 19.97(2) and (3), Wis. Stats., grant the circuit court express authority to void action taken in violation of the open meetings law and to issue injunctive relief.
Bold Kilkenny's (in at least two equally clear senses of the word bold).

The "authority to void action" comes from § 19.97(3), whereas the "authority ... to issue injunctive relief" comes from § 19.97(2). (Note well the "and" in "and to issue injunctive relief." Kilkenny even bolded it for you.) While Judge Sumi has issued (temporary) injunctive relief in accordance with § 19.97(2), she is some ways away from "void[ing] action taken in violation of the open meetings law," as the latter remedy is the one requested at the heart of Ozanne v. Fitzgerald and Judge Sumi has yet to adjudicate the merits of Ozanne's lawsuit and therefore obviously no judgment has been entered in adjudication.

Thus there is no judgment in the following sense:
However, any judgment declaring such action void shall not be entered unless the court finds, under the facts of the particular case, that the public interest in the enforcement of this subchapter outweighs any public interest which there may be in sustaining the validity of the action taken.
That's from § 19.97(3). Judge Sumi hasn't made any such judgment, so Kilkenny's assertions are both premature and totally irrelevant. I have no idea whether Cindy Kilkenny would be interested in retracting her bold "Sumi continues to make up the law as she goes along" announcement, but it certainly is false and borders on the comic.***

In fact I might rank it right up there with Gawker's legal advice to Sarah Palin. To paraphrase Judge Sumi, the defendants could have saved everyone a lot of time and trouble if they just revoted the bill.

Likewise, top WaukCo. conservative blogger Cindy Kilkenny could have just asked me. I've already been "fairly" accommodating.

* Or, the sights you see when you have no gun, as my dear departed granny (who never fired a gun in her long life) was fond of saying.

** But seriously folks, Dane County v. State of Wisconsin.

*** And it's probably too late anyways, since it's been immortalized at and by the WisOpinion.com aggregator.

eta: Cindy Kilkenny responds. But obviously I have never, ever once said or suggested any of those things. If I didn't think anybody but a "liberal elitist" would understand, then why would I try to explain it?

Take issue with the explanations, not some dreamed-up chimeras.

What motivated this post in the first place is the incredibly ill-informed — and vicious, as Bill Lueders enumerated — commentary about Judge Sumi's deliberations. Attempting to correct the public record has nothing to do with "liberal elitism" and I've tried to limn the transgressions even when committed by "conservative elitists."

(The latter example being legalist arrogance of the lowest order. Your correspondent can't even aspire to that degree of superciliousness.)

The press certainly won't do it, so somebody has to. Indeed, from where I sit, the press actively encourages the ill-informedness.


gnarlytrombone said...

"Oh, sure, the administration is deferring at this point to keep the hostility down"

Ima' have that engraved and mounted over the mantel. Très awesome.

illusory tenant said...

Cindy is here.

Michael J. Mathias said...

Ah, the hilarity, that nearly always follows the phrase, "I'm not a lawyer, but..."

But, seriously, every once in awhile, Cindy needs to put up a post to maintain her street cred. This is just the latest.

Cindy K. said...

You called me a top blogger! *blush*

illusory tenant said...

Top conservative blogger, important distinction.

Anonymous said...

Is that commenter on Ms. K's site making a joke when he says it passes (or doesn't pass) "mustard"? Please tell me he is.

illusory tenant said...

Maybe he was just changing a diaper?

Display Name said...

Mac heads also know the story of "Sosumi".

gnarlytrombone said...

Dammit, Foust. You've sent me into a rabbithole. I now know that Sosumi is a tritone, "the interval of the Devil."

illusory tenant said...

As I was saying (or quoting Neil Davis saying, to be exact), "The dominant seventh chord is where we do our most damage" (tritone = flat fifth).

gnarlytrombone said...

You're talkin' to a trombonist here. When we played the Clarinet Polka at the Elks Lodge, my part was ooh ahh, ooh ahh, ooh ahh...

illusory tenant said...

Let "ooh" be the root of the dominant seventh chord, let "ahh" be the fifth of that same dominant seventh chord, flatten the "ahh" and you've got yourself the Clarinet Polka From Heck.

gnarlytrombone said...

"Have a good weekend."

illusory tenant said...

"I'll be praying for you."