How come the Wisconsin redistricting SNAFU?

Because Acts 43 and 44 were passed creating the new State Senate, Assembly, and Congressional districts before municipalities had finished creating their local wards.

And who made that brilliant decision? Your famous WISGOP is who.

So they could have them ready for national GOP approval, no doubt.

You know who Reince Priebus works for, right? And you know who gave unethical judge Mike Gableman free legal services to ensure he stayed on the court where redistricting challenges were most likely headed: Michael Best & Friedrich and national Republican Party activist Jim Bopp.

What a racket,* and an incompetent one at that.

"Connect the dots, connect the dots." — Pee-Wee Herman

* "Syndicate" might be a better word.

Who's paying Mike Gableman's lawyer Viet Dinh?

Or, for that matter, his "Master of Disaster"?

Gableman's attorney, Viet Dinh of Washington, D.C., said the resolution was nothing more than a partisan political attack that "reveals the underlying motivation and insidious nature of the attacks against Justice Gableman." — via the AP's Scott Bauer

I hope it's not much, if that's the best he can come up with. Poor Gableman. He's being attacked. What goes around comes around dude.

Mike Gableman attacks his own current colleagues fer chrissakes.

And who paid the infamous out-of-State agitator Jim Bopp? Bopp, Esq. of Terre Haute did the heavy lifting in Gableman's ethics case.* So effective was Bopp's counsel that he actually caused Justice N. Patrick Crooks to change his mind from favorable to adverse pursuant to a motion for disqualification filed against Gableman in a criminal appeal.

* And who paid Federalist Society member Anita Y. Woudenberg?

Mike Gableman is a walking make-work project for Republican lawyers.

Time for Big Jim Bopp to flip his wig-hat again?

Word on the street is that Milwaukee County assistant district attorney Bruce Landgraf will have something to say on this matter tomorrow.

So don't be surprised if charges issue.

Why the DA must charge Wisconsin Right to Life

In August, the Journal-Sentinel reported that Wisconsin Right to Life (WRTL), the personal privacy skeptics, "offered gift cards ranging from $25 to $75 to volunteers who hit [quotas] for persuading voters to fill out absentee ballot applications in the July recall primary elections."

Last Sunday, the Journal-Sentinel's Daniel Bice confirmed that an investigation into the practice was sustained, and that the Milwaukee County District Attorney's office was handing out subpoenas "like candy." Election bribery is a felony, which means it carries a prison sentence.

This is Wis. Stat. § 12.11(1m), emphases supplied:

Any person who does any of the following violates this chapter:
Offers, gives, lends or promises to give or lend, or endeavors to procure, anything of value, or any office or employment or any privilege or immunity to, or for, any elector, or to or for any other person, in order to induce any elector to:

1. Go to or refrain from going to the polls.

2. Vote or refrain from voting.

3. Vote or refrain from voting for or against a particular person.

"Any of the following" means that giving and offering and promising to give are equally as prohibited by the statute. An offer or promise to give are each sufficient to constitute a violation, short of actually giving or lending. "Anything of value" means — other than cash — "any object which has utility independent of any political message it contains and the value of which exceeds $1." The vouchers satisfy both these criteria.

As I read it, the statute contemplates connections among three separate individuals: (A) the "any person" whose proven offer or promise to give exposes them to a Class I felony, (B) the "any other person" before whose snout the offered or promised inducement tool is dangled, and (C) the "any elector" whose "going to the polls" (or not going to the polls) or "voting" (or not voting) is ultimately sought.* In this case, (A) would be Wisconsin Right to Life, (B) would be the Wisconsin Right to Life volunteers, and (C) would be the absentee ballot application signatories.

WRTL and its counsel James "Constitutional Right to Lie" (CRTL) Bopp would likely claim that submitting absentee ballot applications is neither "going to the polls" nor "voting." And that may be. But their legal problem will be with the inducement element of the statute. Because if one is inducing electors to submit absentee ballot applications, even by an "any other person" proxy, one may not be inducing electors to "go to the polls" — because absentee ballots are by definition proxies for going to the polls — but one is arguably inducing registered electors to vote.

One might attack the claim that merely submitting the absentee ballot application marks the end of the inducement. Of course the inducers — who are both the "any person" and the "any other person" in the election bribery statute — desire a completion of the inducement process: voting. And inducement may most certainly be a process. Its meaning in law is not limited to the performance or completion of discrete acts.

Absentee voting is voting. Requesting absentee ballots is not voting. So the question reduces to whether the statute allows for a thing of value to be offered to anyone to induce any behavior by a registered voter up to the point of that voter actually casting a ballot. Here it seems there is an inducement to vote. Otherwise what good is a completed absentee ballot application? The statute is not so clear, as applied to these facts.

Under different circumstances the Milwaukee County District Attorney might solicit an advisory opinion from the Attorney General as to what activities fit within the outer boundaries of the statute. But we already know what this particular Attorney General's opinion would be. Most of us could give it to him without even asking for it. Which is why the DA needs to formally charge WRTL. Even if the DA's theory is mistaken, a clarification is required for the future, and only a court can provide it.

* You must be an "elector" to complete the absentee ballot application.

Well whaddya know, Wisconsin election bribery

Good news: GAB not investigating WRTL. Bad news: DA is.

It is clear the Milwaukee County district attorney's office is investigating charges that Wisconsin Right to Life offered rewards for volunteers who signed up sympathetic voters in the recall races. Several people familiar with the investigation said subpoenas were being distributed "like candy." — Daniel Bice

Huh.

These are the election bribery allegations, by the way, that an actual Marquette University professor of law attempted to defend against by quoting the State election bribery statute beginning halfway through it, utterly ignoring the pertinent language proscribing offers and promises.

It's comical, but it's also pretty pathetic.

"Are you trying to get me in trouble?" bellowed James Bopp.

I should bloody well hope so.

Been telling anyone who'd listen that this thing had legs. I think the DA has to charge it and I think it will end up at the State Supreme Court.

But the Speed Queen BBQ ribs case, which Bice also mentions, isn't going anywhere. As attenuated from the grasp of the bribery statute one might argue WRTL's shenanigans were, the BBQ ribs were even more so.

Sad Media Trackers will be sad.

Supra: Why the DA must investigate Wisconsin Right to Life

Walker judicial team brings the Gableman defense

Governor Scott Walker's judicial selection committee (.pdf; 3 pgs.) includes Michael Best & Friedrich partner Eric McLeod, who represented Supreme Court Justice/Gableman in the latter's unsuccessful bid to have a Wisconsin Judicial Commission ethics complaint against him dismissed.

Gableman was accused of lying in a Statewide election in 2008, Year of Our Lord. McLeod and Jim Bopp, a lawyer from Indiana, prepared Gableman's defense. I understand it's fallacious to attribute the client's views to his counsel — after all, that's what Justice/Gableman did in his unprecedentedly sleazy teevee ad* — but the judiciary is all about politics for the Walker administration, so why shouldn't it be for everybody else?

Put another way, you don't want to be cynical, but they force you.

Therefore if this is the message Walker wants to send, good for him, and if it energizes his detractors, all the better. Go for it, by all means.

On the other hand when three of the four self-described "conservative" justices who recently invented a novel form of judicial authority — which otherwise is supposed to derive from the State constitution, by the way, a connexion claimed yet ironically denied by the four "conservatives" to both the State's elected representatives and the trial judge in that case — are subject to ethics investigations and/or formal ethics complaints, it's presumed that Walker's selection committee couldn't do much worse.

Scott Walker's team also includes a fellow Gableman alumnus of Hamline University who, Walker's crack communications specialists advise us, "is currently practicing in the area of . . . Land Lord Tennant Law."

Good grief.

* Moreover, McLeod's co-counsel went so far as to malign the integrity of his client's rival by belittling him as the "type of person" who would take on a criminal case. In fact Bopp, Esq.'s remarks** were so offensive to those concerned with professional ethics that they induced Justice Patrick Crooks to switch his vote from dismissing a set of motions to have Justice/Gableman recused from criminal cases to granting those motions. That alone is a big deal and an even bigger deal that Crooks decided to make public his decision and his reasons for making it.

And it's why Lester Pines ruefully opined that nobody whoever practiced criminal defense — the right to which is guaranteed by the U.S. Constitution — could ever be a Supreme Court justice, which is most probably true, thanks to the cynical manipulation of Wisconsin's system of electing them by dishonest Republican politicians like Mike Gableman.

As was noted here in April, 2008, it's not the voters who can't be trusted when it comes to electing Supreme Court judges. It's the candidates.

** And it's not fallacious to attribute the counsel's views to the client.

Justice Prosser hires James Troupis

Which is intriguing because this.*

Troupis, Bopp, a Koch-funded legal outfit ... this baby's got 'em all.

Interestingly, Mike Gableman once grilled a Wisconsin lawyer about George Soros but apparently never saw fit to grill a Minnesota lawyer about David Koch. Ain't no double standards there at all, Nosiree.

* Mr. Troupis is representing every petitioner but the kitchen sink. As is our old pal Prof. Rick. Small world aina? By the way, that may look like a lot of individual respondents but that's the Wisconsin Government Accountability Board: Six judges and its general counsel.

Troupis wrote the famed "carried ... feet first" legal memorandum which even its recipient, Scott Fitzgerald, described as "comical."

This whole shebang is comical alright.

Wisconsin Supreme Court: Among my souvenirs

A Vote for Prosser yard sign autographed by Mike Gableman

Now that's got to give even Justice Prosser the heebie jeebies.*

* Then-Burnett County circuit judge Michael Gableman caught a bad, bad case of the judicial ethics in 2008, and it's pending to this day. Despite Justice Prosser's best efforts, Gableman and his out-of-State Republican lawyer Jim Bopp never managed to get it dismissed. Pity.

Gableman's revisionist "success"

Says the Milwaukee Journal-Sentinel:

[James Bopp] successfully argued in 2009 that State Supreme Court Justice Michael Gableman could not be disciplined for a campaign ad that said opponent Louis Butler "found a loophole" while representing a sex offender appealing his conviction.

If by successfully argued you mean failed to win your motion to dismiss, sure. More generally, success is measured by succeeding.

Once again: the party arguing the "loopholes" was the State. Butler's position obtained from the plain language of the Wisconsin statute which barred the victim's prior sexual history from being introduced as evidence at trial.* And ten out of ten appellate judges agreed.

Under different circumstances self-described conservatives assert their faithful devotion to the law's plain language, except when as a matter of political expediency hypocrisy is more convenient.

And all three judges who heard Bopp's oral presentation — convened on Gableman's motion, it's important to emphasize — nevertheless found that Gableman violated the State code of judicial ethics.

So it's not clear to me where success enters into any of this.

The entire parade of ugly circumstances, initiated by Michael Gableman and carried forward by James Bopp, was a blight.

* Atty. Bopp: It is a loophole, that had nothing to do with [the defendant's] guilt or innocence.

Judge Snyder: 'Loophole' has kind of an emotional ring to it. It wasn't so much a loophole as it just was a properly argued application of the rape shield law, was it not?

Atty. Bopp: Well, uh, it turned out to be, yes.

No, it didn't "turn out to be." It was all along, right from day one.

Thanks, conservative Republicans!

For taking credit where there is none to be had:

Mark Block, State director for Americans for Prosperity, said his group's filing forced the board to back down more quickly in the case it agreed to settle Tuesday.

Makes sense. That explains why One Wisconsin Now, and not Americans For Prosperity, is party to the proposed settlement.*

And here's our old pal Jim Bopp:

The proposed settlement "indicates that (the GAB) feels they are really concerned that the rule was unconstitutional, or they would be mounting a vigorous defense," Bopp said.

I doubt that. More likely, OWN demonstrated successfully that the rule would apply to some speakers that the rule wasn't necessarily formulated to reach. That doesn't make the rule unconstitutional, it only makes its application in certain situations unconstitutional.

The rule itself may still survive — and perhaps even many of its applications. (Atty. Bopp knows this, obviously. It's just that he's a bit less of a constitutional lawyer than he is a professional Republican rabble-rouser.)

Mr. Bopp is perhaps best known in Wisconsin for his representation of State judge Michael Gableman. The Wisconsin Judicial Commission filed an ethics complaint against the judge in 2008, which Gableman and Bopp fought unsuccessfully to have dismissed.

* An Obama appointee is expected to confer his blessing today. Conservatives can (and probably will) take credit for this as well. It goes as follows: 'See, if we hadn't arbitrarily and capriciously obstructed Obama's nomination of Louis Butler, he'd have got this case and shut us all up and confiscated our firearms in the process.'

Bopp@OWN

Got yer odd bedfellows right here.

Court shameful, dysfunctional: Former justice

Former Wisconsin Supreme Court Justice William Bablitch said it was shameful the court issued decisions that order two different outcomes. "I don't know what the Judicial Commission is supposed to do, flip a coin?" he said. "It's just further evidence of the deep divisions in the court and the dysfunctionality in the court. It's very discouraging."

Well, it can't be that dysfunctional. Just this week the court issued three unanimous decisions, two 6-1 decisions (Justice Prosser dissented in both), and one 4-3 decision, the latter being comprised of the unprecedented triumvirate of Justices Bradley, Roggensack, and Gableman in complete agreement.

What's caused a division are Gableman's "distasteful" shenanigans before he reached the court,* which apparently his colleagues are capable of setting aside when it comes to the business of deciding unrelated cases. But the fact that Gableman has demonstrated a high degree of competence on the bench doesn't mitigate the seriousness of the ethical violation three of those colleagues believe — with very good reason — he committed in furtherance of securing that seat.

* And after, at least through his lawyer's own distasteful shenanigans. Recall that Justice Crooks underwent a sea change in his view of the defendant's motion to recuse in State v. Allen, after Crooks got wind of James Bopp's performance at Gableman's demand for summary judgment hearing in his ethics case last September in Waukesha.

And who can say whether those shifting waters lapped onto the shore of Justice Crooks's decision to refuse mooring Gableman in the safe harbor of summary judgment. [That's enough metaphor — ed.]

Gableman bounced back to Judicial Commission

Upping the ante, three of six justices want a defamation trial

Sadly, the approach offered in defense of the advertisement at issue here would approach the Code of Judicial Conduct in the manner of wordplay and linguistic gamesmanship, rather than as an embodiment of substantive ethical standards.

— Opinion of Abrahamson, Bradley, and Crooks

To the surprise of probably no one, the Wisconsin Supreme Court has reached an "impasse" in the matter of Michael Gableman (depicted at left). Three justices, Prosser, Roggensack, and Ziegler, said last night they "anticipate" that the Wisconsin Judicial Commission will formally abandon its ethics complaint against Gableman (significant to the court's opinions, a complaint that Gableman himself has not been successful in having dismissed).

[eta: Gableman is reportedly dancing a victory gavotte-by-proxy.]

The other three justices, Chief Justice Abrahamson, Bradley, and Crooks, gave "directions" to the Commission to request a trial by jury to determine whether Gableman's scurrilous 2008 teevee ad deliberately and maliciously misrepresented facts about then-sitting Wisconsin Supreme Court Justice Louis B. Butler.

It's not immediately clear whether half of an equally divided court (Gableman, titularly the seventh member, is not participating) has any authority to compel those directions in this case. Nor is it clear, even if half the court does possess that authority, whether the Judicial Commission long since relinquished its opportunity to exercise its own authority to request a jury's factual review.

According to the court's general provisions in the Wisconsin statutes, the Commission may request a jury hearing in a matter, but it has to do so before it files a formal complaint, which it already did in October, 2008.

The latter requirement, it seems to me, presumes a resolution once the Commission advances its case, something that has yet to be achieved even after its reaching through the State Supreme Court. But the court yesterday was unanimous in its view that the next move, whatever it might be, belongs to the Judicial Commission.

[eta: Learned counsel Rob Henak suggests it move into Club Fed.]

The Commission in 2008 chose instead to present its case not to a jury but before a three-judge panel. That presentation happened last September in Waukesha County. Two months later the panel handed up its recommendation, which the Supreme Court is not obliged to follow. The panel recommended that the complaint against Gableman be dismissed, but two judges also found that Gableman had violated a different provision of the code of judicial ethics.

The third panelist, Ralph Adam Fine, disagreed substantially and found Gableman had by his deeds committed the more serious, punishable violation alleged by the Commission, but that the ethics rule itself was an unconstitutional abridgment of speech and thus not enforceable against Gableman.

As I said at the time, Judge Fine's separate opinion was the most significant. That turns out to have been an accurate prediction.

Judge Fine was the only one of the panelists who rightly found ludicrous Gableman's defense that the statement clearly professed in his ad, that Butler's professional obligations as defense counsel contributed to causing the rape of an 11-year-old mentally disabled girl, could be overlooked in favor of isolating an audiovisual ad's script, breaking that script into individual, brief English sentences and, moreover, ignoring the meaningful connections between those.

It's a defense that Prosser, Roggensack, and Ziegler succumbed to, and one that Abrahamson, Bradley, and Crooks rejected entirely.

The latter three justices determined that Gableman's statement — "statement" is a crucial term of legal art in this case whose meaning as applied to the ad has never been sufficiently explored, imho — regarding Butler's causal connection with the rape (the others coyly attribute the message to "then-Judge Gableman's campaign committee") was arguably and provably defamation uttered in malice and as such is not availing of First Amendment protection.

Those justices emphasized — as has been repeatedly emphasized at this here blog — Gableman's own affirmations that he had made himself thoroughly familiar with all of the substantive and procedural circumstances of Butler's representation as an appellate attorney for Reuben Lee Mitchell and therefore had to have known that his — not his "campaign committee's" — teevee ad conveyed a false statement of fact. (Or, as the Commission puts it, Gableman lied.)

The three also tossed in a factor contributing to their determination that hadn't been addressed until, ironically, Gableman's lawyer James Bopp of Indiana brought it up during the proceedings. This has to do with the case citations that appear as text at the bottom of the teevee ad which, when investigated as Mr. Bopp had suggested, deviously point away from the fact that Butler's appeal on his client's behalf was ultimately rejected by the Wisconsin Supreme Court.

More later. Obviously there's much to say about these opinions.

Opinion of Prosser, Roggensack, and Ziegler
Opinion of Abrahamson, Bradley, and Crooks

Great moments in guilt by association

3) Jesus Christ hangs with Pharisees and whores
2) Johnny Cash performs for killers and thieves
1) James Bopp explains the law to Mike Plaisted

And, more recently ...

Quote of the day II: Gableman edition

Remarkable:

"Attorney Bopp's comments are irrelevant to the disciplinary proceeding ... " — Marquette professor of law Rick Esenberg

This is a unique perspective, considering the Attorney Bopp comments at issue were delivered before three appeals court judges last September during the disciplinary proceeding.

That is, they're part of the record of the disciplinary proceeding, which is slated to go before the Wisconsin Supreme Court on April 16 and they go directly to the question of Gableman's willfulness to violate the Wisconsin code of judicial conduct, precisely the manner of behavior the Wisconsin Judicial Commission alleges.*

In fact Bopp's mini-jeremiad issued forth in response to questions from the panel of judges requesting Bopp, the legal agent of Gableman, to explain the rationale behind Gableman's teevee advertisement, the very object of the disciplinary proceeding.

Perhaps Prof. Esenberg is distinguishing between Bopp's presentation on the record and his presentation to reporters after the hearing.

But not even Gableman, in his motion to recuse another Supreme Court justice from hearing oral arguments in the disciplinary proceeding, distinguishes between the two sets of commentary:

In [his separately authored concurrence], Justice Crooks condemned statements made by Attorney James Bopp, Jr. ... during oral argument before the Judicial Conduct Panel and to the press afterward.

Gableman seems to think they're mighty relevant indeed, as he's clearly out to protect his own bacon from the ill-advised public declarations of own attorney.

More specifically, he's looking to insulate himself from the perception Attorney Bopp's commentary created in a member of the tribunal before whom Gableman is to be judged, which is certainly one of the broader ironies to have emerged pursuant to this whole escapade.

Here, by the way, is a useful quote from Liteky v. United States, the sole case Gableman cites in his motion to recuse Justice Crooks:

The judge who presides at a trial may, upon completion of the evidence, be exceedingly ill disposed towards the defendant, who has been shown to be a thoroughly reprehensible person. But the judge is not thereby recusable for bias or prejudice, since his knowledge and the opinion it produced were properly and necessarily acquired in the course of the proceedings, and are indeed sometimes (as in a bench trial) necessary to completion of the judge's task.

That's Justice Scalia, writing for a majority of the Court, supposedly in support of Gableman's efforts to un-preside Patrick Crooks.

Gableman's disciplinary proceeding is currently in its third year.

* The WJC has said repeatedly that Gableman "lied."

Reporters need to read legal opinions

Or else ask somebody who has. According to the Badger Herald:

Crooks said that Bopp's comments "startled and appalled many in the legal community," and he called on Gableman to distance himself from the lawyer's views.

No, Justice Crooks did not "call on Gableman to distance himself from the lawyer's views." Justice Crooks simply observed that a recent statement of Gableman's pledging to treat "all persons fairly" did not include a repudiation of Bopp's comments. That's just a plain fact.

Justice Crooks's overarching point was that Gableman's lawyer Bopp's remarks turned up in supplemental filings to Aaron Antonio Allen's initial request to have Gableman recused from hearing his criminal appeal and the court was giving short shrift to those additional factors by refusing to order additional briefing on the matter.

A reporter should know the difference between reporting and advocacy, a particularly crucial distinction in this instance, where no such advocacy exists. Gableman also claims that Justice Crooks's observation is a "rebuke" and a "gratuitous personal attack," but neither of these hyperbolic accusations is supported by the record.

Gableman set his own table. He sure ain't no victim.

What is the sound of one irony meter exploding

Gableman wants Crooks off of ethics case

Here's why:

Notably, Justice Patrick Crooks wrote separately to indicate that he was fully prepared to deny Allen's motion [to get Gableman off of his case], thus providing a fourth and decisive vote in that direction, had it not been for Atty. James Bopp's shenanigans as Gableman's defense lawyer during and after Gableman's hearing on ethics charges in September.

Unintended consequences.

Apparently Gableman is concerned about getting a fair hearing before an impartial tribunal, and is troubled by "gratuitous personal attacks" and "personal criticisms" which might have a tendency to generate the appearance of judicial bias against the respondent, Gableman.

Who would have ever heard of such things.

Here's my question: If Justice Crooks recuses himself from future participation in Gableman's ethics case, will Crooks thereby be denying Gableman's First Amendment right to vote in a general election for the State Supreme Court justice of his choosing?

What about the 499,636 Wisconsinites who voted for Justice Crooks?

WJC v. Gableman oral argument

Friday, April 16, 2010, at 1:30 p.m.

Featuring the litigious stylings of the RNC's Mr. Jim Bopp?

Who, exactly, is to blame?

Wisconsin Supreme Court Justice David Prosser writes:

The Allen motion ... has been followed by nine additional recusal motions against members of this court [seven of which are "against" Gableman]. The Wisconsin State Public Defender's office has invited the entire defense bar to file recusal motions against [Gableman] in criminal cases. The number and savagery of these motions is unprecedented and amounts to a frontal assault on the court. The court should have denied Allen's motion quickly, without comment. This would have avoided exposing controversy within the court.

Or, alternatively, Gableman should have anticipated the controversy that he engendered by engaging in scurrilous political subterfuge.

Savagery, indeed. Sorry, but it's mighty hard to sympathize.

That the court today divided 3-3 on Allen's motion to disqualify Gableman (who did not participate*) means the motion is neither granted nor denied.** Notably, Justice Patrick Crooks wrote separately to indicate that he was fully prepared to deny Allen's motion, thus providing a fourth and decisive vote in that direction, had it not been for Atty. James Bopp's shenanigans as Gableman's defense lawyer during and after Gableman's hearing on ethics charges in September.

So beware those nasty unintended consequences. Heckuva job, etc.

* Which may seem obvious, but according to the lead opinion, Gableman was undecided for some time over whether to participate on the more impersonal question of whether the court, as an institution, had the authority to overrule an individual judge of that court's own decision not to disqualify himself from a case.

** Rather, the motion is "not granted." Furthermore, as Chief Justice Shirley Abrahamson put it: "As a practical matter, Justices Prosser, Roggensack, and Ziegler are implicitly telling all litigants in Wisconsin that they need to go to the federal courts to seek relief from a Wisconsin justice who they believe is biased."

Perhaps that's another clue as to the meaning of "Federalist Society."

Earlier: Bopp's demagoguing was completely unnecessary.

"Shut up," free speech advocate explained

Idea was "ridiculous ... nuts," the plainly annoyed Bopp was told

Wouldn't Bopp be more welcome among the Tea faction?