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.

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.

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.

Out-of-State agitators return to Wisconsin

How's this for pointless, recreational litigation.

Christian Gossett, a Republican ...

Naturally.

... [is] represented by a Georgia lawyer.

Also, naturally. I hope they lose but if not, the expression "law enforcement officer" is broadened to include defense attorneys.

Why shouldn't it? Equal protection and all that, figuratively and literally. Defense counsel appears in court for the same reasons, to ensure the law is enforced within the boundaries of the various constitutions.

Given the preponderance of ineffective assistance of counsel claims, an unlucky defendant is just as likely to shoot his own lawyer as the ADA.*

Possibly even more likely.

* The conflict is between sub. 3 and sub. 2, wherein permission to carry in the courtroom is required from the presiding judge, as it should be.
Perhaps Mr. Gossett and his subordinates are free to strut around with their handguns in the courtroom so long as the court is not in session.

Or else maybe a judge can invoke her "supervisory/original" jurisdiction.

Milwaukee columnist Joel McNally propagates a myth

How disappointing — depressing, even — to find Joel McNally, who writes an otherwise quality political column in the Milwaukee Shepherd Express, propagating this complete myth that the Wisconsin Supreme Court is somehow tasked with ordering the formation of a tribunal to assess the Wisconsin Judicial Commission's complaint against Justice David Prosser:

Nearly two months after Prosser was charged, the [Wisconsin Supreme Court] still has not been able to appoint a three-judge appeals court panel to hear evidence, decide guilt and recommend any appropriate punishment.

It doesn't need to be able to: that court has nothing whatsoever to do with appointing the panel. Why would a scribe of McNally's abilities trust the Milwaukee Journal-Sentinel, which is presumably where McNally has obtained his premise, over the plain language of the State statutes?

Here it is again:

A judicial conduct ... panel shall consist of either 3 court of appeals judges or 2 court of appeals judges and one reserve judge. Each judge may be selected from any court of appeals district including the potential selection of all judges from the same district. The chief judge of the court of appeals shall select the judges and designate which shall be presiding judge.

How much plainer could it be? Go ahead and read Wis. Stats. §§ 757.81 through 757.99 and show me where the Supreme Court has anything to do with the commission's or the panel's work until that work is complete.

You won't find it. The complaint is filed with the Supreme Court for one obvious reason: because that body has supervisory authority over the State judiciary and the filing of the complaint is mere notice that an action has commenced. The process described in the aforementioned statutes is unique; it's neither civil nor criminal and indeed the statutes themselves explicitly acknowledge the uniqueness of that process.

Nowhere is the Supreme Court given any authority over the formation of the appellate judge panel and indeed if the Supreme Court is denying the exercise of a chimerical authority then it is thwarting the clear directives of the statute whereby the investigative process is wholly given over to the judicial commission and the appeals court judges.

Nobody should ever trust newspaper or teevee reports of legal proceedings,* especially these days when so many original sources are available online. And certainly don't trust the Journal-Sentinel, which has even editorialized that the complaint against Justice Prosser  —  whose candidacy the paper endorsed last year  —  should be dropped, again, based on the demonstrably false premise that the Wisconsin Supreme Court has formative authority over the judicial conduct panel.

The Supreme Court has nothing to do until the panel has done its work and more recently we had Prosser's "conservative" ally Justice Patience Roggensack recuse herself from a case that isn't even before her court!

The present situation is one of pure lawlessness and again I ask myself, what is the point of even posting at this blog directed to a jurisdiction where conservative media drive the political narrative and now even prominent local liberal commentators are suckered by that narrative.

Well, whatevs. Have at it, y'all. And hey, there's always Rick Esenberg.

I have a couple of "unfinished business" posts I want to throw down but after that, it's either back to hiatus or I'm going to find something else to write about other than this banging-your-head-against-a-wall stuff.

* An FYI: Worst offender, CNN's Jeffrey Toobin. That dude is dreadful.

More than one million signatures to Recall Walker

"Thanks a million." — Scott Walker

I happened to catch Charlie Sykes and his fellow wing-nuts Christian Schneider and Brian Sikma on TMJ-4 on Sunday. All were yukking it up and claiming organizers would fail to collect enough signatures to recall Lieutenant Governor Rebecca Kleefisch, but they got her too, with nearly 850,000 of them. These characters are in deep, profound denial.

And WISGOP challenges will likewise be an exercise in futility. Signature-gatherers have been triple-checking the docs prior to their submittal.

Now, more importantly, we'll see whether November, 2010 was a fluke.

Even if it wasn't, Scott Walker blew it, by rescinding the people's statutory rights, which wasn't necessary, and in particular wasn't necessary for any fiscal reason. Walker admitted that, and the litigation which culminated in the Wisconsin Supreme Court's invention of "supervisory/original" jurisdiction proved it. Rescinding the people's rights is not something you can do without consequence, apparently.

That's as it should be, and it's why the constitution authorizes recalls.

Wisconsin Republicans get set to sue themselves

I'd overlooked this little tidbit from Thursday's Milwaukee Journal-Sentinel until a commenter pointed it out this morning:

New legislative [district] maps that favor Republicans have been drawn for the regular fall 2012 elections. When Republicans drew those maps, they wrote State law to say recall elections conducted before then would be run under the current maps.

But Republicans on Thursday pointed to a 1982 opinion by then-Attorney General Bronson La Follette that said recall elections would be conducted under new legislative maps. They said that opinion and others trumped the recent language in State law that says the new maps don't take effect for elections until fall 2012.

That language was tucked into the bills that established the new maps, and it remains unclear why Republicans wrote them that way. They paid Michael Best & Friedrich and the Troupis Law Office $400,000 in taxpayer money to write those bills.

Good luck arguing an advisory opinion supersedes State law, I guess.

This might be another job for supervisory/original jurisdiction.

Another case for supervisory/original jurisdiction

Petition of Clarke

Milwaukee County sheriff has nowhere to go:

"I have been advised that the matter is closed, and my ability to learn what facts or methodology the Commission used in reaching that decision is confidential. No. Not in my world."

Well, Sheriff Clarke's ability to learn facts isn't confidential, but the Wisconsin Judicial Commission's pre-formal complaint deliberations are:

All proceedings under ss. 757.81 to 757.99 relating to misconduct prior to the filing of a petition or formal complaint by the commission are confidential unless a judge or circuit or supplemental court commissioner waives the right to confidentiality in writing to the commission. — § 757.93(1)(a)

That may not conform to the sheriff's personal world but it is the law.

Clearly, a case for supervisory/original jurisdiction.

Wisconsin SC Justice David Prosser: Evil genius?

Wisconsin Public Radio reports:

Prosser recused himself from this case under public pressure because it was scheduled to be argued by Jim Troupis, Prosser's friend and an attorney in his successful recount earlier this year. Troupis was not in court for arguments. That could leave the court with a 3-3 split, which would allow the rule to go forward.

But see:

IT IS ORDERED that to preserve the status quo, the respondents are enjoined from enforcing the amendments to Wis. Admin. Code § GAB 1.28 published on July 31, 2010, pending further order of this court. — Wis. S. Ct., August 13, 2010

That is, enforcement of the rule, which requires disclosures from individuals making "express advocacy" on behalf of specific political candidates, is prohibited by the court's August 13, 2010 injunction. And, if the Prosser-less court is unable to reach a majority disposition, then no "further order" can be made reversing the order of injunction.

Moreover, because Wisconsin Prosperity Network v. Myse is an original action, filed directly with the Supreme Court, there is no lower court decision to stand, in the event of a high court deadlock. Therefore, contrary to Wisconsin Public Radio's claim — and the claims of other press reports — such a division would not allow the rule to go forward, but rather serve to keep the court's August 13, 2010 injunction in force.

So not only would 2011 be the year of "supervisory/original jurisdiction," it would also be the year of the "temporary/permanent injunction."

Yet another remarkable wrinkle of this case is the fact that Justice Prosser was part of the majority that ordered the injunction in August, 2010, ceased participating in the case in August, 2011, and finally, on September 2, 2011, formally disqualified himself from the case (the Milwaukee Journal-Sentinel editorial board took credit for Prosser's disqualification this month, even though this here blog had pointed to Prosser's conflicting relationships with James Troupis way back in April).

That is, Justice Prosser's non-availability for formation of a majority disposition may prevent the Supreme Court from undoing that which Justice Prosser himself hath wrought. And, finally, it may be recalled that a majority of the court — complete with a concurring opinion authored by Prosser and joined by his close political ally Mike Gableman — exercised the extraordinary power of injunction prior to deciding whether it even had jurisdiction over the case in the first instance.

And by way of doing so, literally rewrote the Wisconsin constitution.*

Unprecedented, or, less charitably, making-it-up-as-they-go-along.

* How anybody considers this "conservative jurisprudence" is beyond me.

Prosser's conduct: Next steps

One Wisconsin Now is filing an open records request to obtain any written and electronic communications between the four conservative justices, David Prosser, Mike Gableman, Annette Ziegler and Patience Roggensack, and Scott Walker's office, the office of Mike Huebsch, and Scott and Jeff Fitzgeralds' offices.

You can visit the link to chip in a few bucks.

Walker wasn't a named party to the so-called "supervisory/original" action that the Supreme Court heard and decided but Deputy Attorney General Kevin St. John admitted — reluctantly — under questioning from the Chief Justice that it was indeed Scott Walker who instigated the petition. Mike Huebsch is Walker's Secretary of Administration who made the notorious estimate of $7.5 million to repair "damage" to the State Capitol building in the wake of demonstrations in February and March.

The actual figure turned out to be just over 100 grand, and even that included for repairs to existing wear and tear from years gone by, some of which was caused by people in wheelchairs. Assembly Speaker Jeff Fitzgerald, brother of Scott, is reportedly running for the U.S. Senate.

At least, that's what the Wausau Daily Herald editorial board said Fitzgerald told them. But then a spokesman for Fitzgerald said it would be against the law for Fitzgerald to say that. Not like the law prevented WISGOP legislative activities in the past, which the four "conservatives" on the Wisconsin Supreme Court said was perfectly fine with them.

A new jurisdiction called "supervisory/original"

Required reading right here.

An extraordinary writ is a supervisory remedy

Affirmed the Wisconsin Supreme Court, yesterday:

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

So, is that what Dane County Circuit Judge Maryann Sumi did?

No, of course not. Which is apparently why the same Wisconsin Supreme Court, by a majority composed of the same four conservative justices who just one month ago needed to invent a novel form of judicial authority, which it dubbed "supervisory/original jurisdiction," to avoid precisely the requirement the Wisconsin Supreme Court now affirms.

The court elaborates:

[A] petition for a supervisory writ will not be issued unless the duty of the circuit court is plain [and the circuit court's] refusal to act within the line of such duty or its intent to act in violation of such duty is clear.

I'm paraphrasing. Yesterday's majority supplies the underlining.

Not only did the Supreme Court, in Huebsch v. Dane County Circuit Court, fail to describe either what Judge Sumi's plain duty was or how exactly she refused it or intended to violate it — and yesterday the Supreme Court confirmed that a supervisory court must do both — in fact neither the term "plain" nor the term "duty" even appear in the court's June 14 order in the context of Judge Sumi's deliberations.

Thus may one puzzle as to how the Supreme Court might issue a supervisory writ without even addressing the criteria by which it exercises its authority to issue a supervisory writ, let alone explaining it.

Simple: Invent a novel source of judicial authority, what any self-respecting conservative jurisprude would do, of course. For we are assured they are conservatives, even by those judges themselves.

Granted, they are conservative Republicans. But conservative in the sense of the oft-invoked and sacred canons of "judicial restraint"? Considerably less so, expediency permitting. Indeed if anyone was carefully mindful of conservative principles of restraint, it was Sumi.

And, more remarkably, yesterday the court clarified that "a supervisory writ is dedicated to the discretion of the court of original jurisdiction."

That's ambiguous, but what it means is the supervisory writ is aimed at the discretion of the court of original jurisdiction. That is, it's the discretion of the court of original jurisdiction, and the alleged abuse of that discretion, which a supervisory writ is dedicated to supervising.

And in Huebsch, the court of original jurisdiction was the one named in Huebsch's petition, the one presided over by Dane County Judge Sumi. That's what original jurisdiction means: the first court to hear the case.

In fact the Supreme Court was the third court to have been presented the case, the second being the District IV Court of Appeals, which passed the Department of Justice's previous motion for permission to appeal on to the Supreme Court.* So how in the world could the Supreme Court exercise any claimed definition of original jurisdiction over this case?

Again, piece of cake: Slap together with some punctuation the court's supervisory authority and its power to hear cases in original jurisdiction.

The Wisconsin constitution empowers the Supreme Court with four separate avenues of authority: superintending (a.k.a. supervisory), administrative (which is not at issue in Huebsch v. Dane County), appellate jurisdiction (the Huebsch Court dismissed the DOJ's petition to exercise its appellate jurisdiction), and original jurisdiction. Original jurisdiction was off the table in March. As Justice Crooks flatly stated, "No petition for original jurisdiction ... was filed in this court by any party. . . . There is nothing 'original' or 'in the first instance' here."

The Department of Justice clearly understood this, as is evident from the entire procedural history of this case, and from all of the DOJ's paper filings. The Supreme Court maneuvered the DOJ into position to act as the Supreme Court's proxy in order to achieve the result that a majority of the Supreme Court sought. There is no other explanation.

There's certainly no other satisfactory explanation. Take a look at this bland assertion made by the Huebsch v. Dane County majority:

¶5 IT IS FURTHER ORDERED that the petition for original jurisdiction in Case No. 2011AP765-W is granted, State ex rel. La Follette v. Stitt, 114 Wis. 2d 358, 338 N.W.2d 684 (1983), and all motions to dismiss and for supplemental briefing are denied.

Case No. 2011AP765-W is a petition for supervisory writ, and not a petition for original jurisdiction. On the other hand, La Follette v. Stitt was a petition for original jurisdiction. The Huebsch majority does not tell us where exactly to look in La Follette v. Stitt to support its rationale; it merely cites the entire case. But presumably, it means this:

We granted the petition to commence an original action because this matter is publici juris and requires a prompt and authoritative determination by this court in the first instance.

However the (judge-made) doctrine of publici juris** is invoked in Stitt to justify the granting of La Follette's petition to the Supreme Court to accept original jurisdiction over his case. Indeed, Stitt itself cites to this prior caselaw: "If the matter is publici juris, this court may elect to take original jurisdiction if asked to do so." This underlining added.

Which the Huebsch Court wasn't asked. Its ¶5 is pure magical fiat.

Any conservative could tell you that.

Footnote footnote: Yesterday's footnote 6 is also pretty cute. It reads, "Wisconsin Stat. § 809.51 is the appellate rule that governs petitions for a '[s]upervisory writ and original jurisdiction to issue prerogative writ.'"

This is true as far as it goes but the fact of the matter is, Wis. Stat. § 809.51 also distinguishes between supervisory and original jurisdiction, presenting as it does a choice to prospective petitioners as to whether they will proceed in accordance with one or the other form of authority.

But the distinction is not so much germane to Huebsch, where the majority conjured a petition for an original action from a petition for a supervisory writ, and Huebsch doesn't get to § 809.51 except by way of § 809.71, which is the Supreme Court rule exclusive to its supervisory jurisdiction. While § 809.51 presents both options, the presence of two separate statutory provisions, § 809.71 and § 809.70, reinforces the contention that "supervisory/original jurisdiction" makes as much sense as "disorderly/theft" or "sexual assault of a/moveable property."***

On the other hand, the Supreme Court helpfully disabuses the absurdist notion that the only court referred to in Wis. Stat. § 809.51 is the court of appeals, a notion published in apparent seriousness on, of all places, the front page of the Marquette University Law School's faculty blog.

* And which the Supreme Court dismissed on June 14 — unanimously.

** Publici juris simply means "public right." The public also retains a couple of more fundamental rights: the right to draft constitutions and enact rules that define and delineate the powers of the courts and the right to not draft constitutions and not enact rules which authorize courts to combine those powers into new, judicially manufactured ones.

*** Notwithstanding Lt. Gov. Rebecca Kleefisch's table/marriages.

JRN class act Charlie Sykes mocks a disabled man

Chris Liebenthal explains. I seem to recall an incident whereby Chris dared to suggest that Sarah Palin was using her child, who has Down Syndrome, as a political prop, which elicited gale force huffing and puffing from the local wing-nuts. Their silence in the present instance is assured.

A commenter notes:

There are several reasons why Jeremy has not paid any of the citations yet: the first is that several were dismissed, and the second is that he has yet to go to court on the other citations.

That's true, and not hard to confirm, even for a knucklehead like Sykes.

And everybody knows the constitutional authority to administer their calendars proceeds from the courts' supervisory/original jurisdiction.

Channel 3000 — Segway Transporter Donated To Disabled Man

"Jeremy Ryan, better known as 'Segway Boy,'" scrawled the Madison wing-nut* David Blaska. Better known by a-holes as Segway Boy, that is.

Also, if you care to follow the links, you'll find Charlie Sykes praising the ludicrous meanderings of William Jacobson, professor of law. Obviously that's not surprising but a Jacobson devotee turns up in Charlie Sykes's comments to chastise the Journal Communications, Inc. shouter for "putting an innuendo on someone who has actually taken the time to study the law" and claiming Jacobson never said what Sykes has him saying, which is that "Justice Ann Walsh Bradley needs to be held accountable for her 'chokehold' accusation." But of course that's exactly what Jacobson is saying. However, to be fair, Jacobson must have been busy that day because he only took time to study two-thirds of the law. Trouble is, the missing third is a mighty important third, as it turns out.

* A rare breed, so apparently you have to try harder.

Pictured: WTMJ harlequin Sykes in psychedelic hippie freak-out garb.

Daniel is Suhr tenacious, I'll give him that much

[Good grief man.]

Mr. Suhr, thank you for taking the time. I must say I have always found kibbutzing with you on the internets a source of considerable amusement and I am sincerely grateful for that as well.

However, please have a look one more time at § 809.71, which refers back to and incorporates by that reference § 809.51. A person seeking a supervisory writ under § 809.71 (e.g., petitioner Mike Huebsch [a.k.a. Scott Walker] who, incidentally, ended up getting something he never sought by dint of the punctuational jurisdiction invented by Justice/Gableman) must file "in accordance with s. 809.51." Thus does "the court" in § 809.51 mean the Supreme Court, in perfect consonance with the wise and premonitory guidance set forth in § 809.01(4).

So to continue to insist, as you are doing above, that "the court" in § 809.51 can mean "only" the Court of Appeals is, as the saying goes, absurd. Again: I am not misapplying § 809.51 but rather reading it in its alternate context, following the direction of § 809.71.

The only thing in § 809.51 that § 809.71 does not incorporate by reference is, obviously, the former's language, "or its original jurisdiction," which is where your superfluity analysis would apply, as the Supreme Court's original jurisdiction is addressed separately, in § 809.70.

And these have been my contentions from the outset: that original and supervisory jurisdiction are separate and distinct forms of judicial authority, and that there is no constitutional basis for Justice/Gableman's creation of an alternatively convenient source of judicial power by forward slash.

(Setting amusement aside for a moment, your main post here at the Marquette University Law School faculty blog embodies an unwarranted criticism of my writing and I can only hope that your readers continue on throughout this comments thread for the fuller explication. However, experience teaches me that that is not something upon which I can depend, if you're picking up what I'm throwing down.)

By the way, a not dissimilar question of construction arose at the time the Walker administration attempted vainly to claim publication of 2011 Wisconsin Act 10 while publication was temporarily enjoined. A provision might have two different meanings, or two different applications, depending upon how it may be incorporated by reference into other statutory provisions.

You can read all about that little brouhaha at my own wildly popular blog, illusory tenant, in a post entitled, "Wisconsin statutes, a couple three of them," of March 26, 2011. Or, if you prefer, Prof. Fallone's compelling epistle of March 28, at this present location, [*] which covers much of the same ground (as Prof. Fallone was most generous to acknowledge).

Have a good one, Mr. Suhr, and keep those FedSoc recruits coming.

* That is, the Marquette University Law School faculty blog, to whence the above comment was submitted. Should be posted in a day or two.

Marquette law school's honorary faculty, Daniel Suhr

I see our friend Daniel Suhr is up to his risible tricks* at the Marquette University Law School faculty blog, accusing me of "fail[ing] to note" that the Wisconsin Supreme Court is a court of appeals, or something.

In a nutshell, and in reference to this post, Mr. Suhr claims Wis. Stat. § 809.51 applies only to these courts of appeal and thus does not direct attentive readers of the law to §§ 809.70 and 809.71, which distinguish between the two types of jurisdictional authority, supervisory and original (the two that Gableman & Co. conjoined with a forward slash).

The hapless Mr. Suhr is either unaware that the Supreme Court is itself a court of appeals or else failed to read the set of definitions provided at the outset to Chapter 809 of the Wisconsin Statutes and Annotations:

"Court" means the court of appeals or, if the appeal or other proceeding is in the supreme court, the supreme court.

It's a mystery why the faculty continues to publish Mr. Suhr's claptrap.

Frankly, it's embarrassing to other, competent MULS alumni.

At least he might read the law prior to leveling his absurd accusations. I most certainly do, and furthermore see no need to reiterate each and every jot and tittle of it in a blog post, particularly those provisions that are so blindingly obvious to everyone save the "research assistant" Suhr.

Lord, make me a vessel of Your patience.

* See also Ed Fallone's comment. My own is "awaiting moderation."

Here it is, just in case:

Thanks Prof. Fallone.

Evidently Mr. Suhr himself "failed to note" § 809.01(4): "[In this chapter] 'Court' means the court of appeals, or if the appeal or other proceeding is in the supreme court, the supreme court." So clearly § 809.51 does indeed "carry forward" to §§ 809.70 and 809.71, contrary to Mr. Suhr’s unique rationalizations. Now perhaps Mr. Suhr would be so kind as to withdraw his accusation that I misapplied § 809.51.

A corporation, but not a Gableman, is a person

CAPITOL KAOS

A person may request the supreme court to take jurisdiction of an original action by filing a petition which may be supported by a memorandum. — Wis. Stat. § 809.70

Bet you didn't know that person could be Mike Gableman.

Until yesterday, to be sure, when neither did anybody else.

A person may request the court to exercise its supervisory jurisdiction or its original jurisdiction to issue a prerogative writ over a court and the presiding judge, or other person or body, by filing a petition and supporting memorandum. — § 809.51

That is, § 809.70 or § 809.71. Either one or the other. Not and. I refer the reader to the small catalog of propositional operators contained in any introductory text on logic, beginning from Aristotle's (c. 360 BCE).

Now Huebsch (by his counsel the Department of Justice) is a person:

PETITION FOR SUPERVISORY WRIT PURSUANT TO WIS. STAT.
§ 809.71 — State ex rel. Michael D. Huebsch, 04.07.2011

Yet the following appeared at 4:45 p.m. on June 14, in an unsigned order of the court but reputedly the handiwork of Mike Gableman:

On June 6, 2011, this court ... heard argument addressing whether the court should accept either the certification or the petition for supervisory/original jurisdiction or both; the court also heard argument on the merits of the pending matters.

The certification was a separate case, and was dismissed. The forward slash conjoining 'supervisory' to 'original' is a fabrication from whole cloth. So-called conservative jurisprudence by typographical insertion.

In the Wisconsin statutes, the distinction between the court's supervisory and original jurisdictions is codified by their separate numberings:
§ 809.70 and § 809.71. The Department of Justice chose the latter.

It would not have occurred to the Department of Justice to petition the court to take jurisdiction of an original action because Ozanne v. Fitzgerald could not, obviously, be an original action for the purposes of the Supreme Court's original jurisdiction. Hence the supervisory petition.

¶7 This court has granted the petition for an original action ...

No such petition existed, until the Gableman court manufactured it.

WMC's Mike Gableman, who a three-appellate-judge panel found in 2009 to have violated two separate provisions of the Wisconsin code of judicial ethics (Gableman was a judge on an "inferior court" — as Kevin St. John would have it — at the time) campaigned on a political platform of "strict constructionism" and the faithful adherence to legal texts.

Evidently those were lies as well.

And this is not the first time that Gableman has conjured a creative interpretation of the Supreme Court's jurisdictional authorities. The present instance is not of judicial activism, but of judicial arrogance.

Ironically, Gableman's cohort Justice Prosser purports to justify the court's exercising original jurisdiction by mysterious reference to the State constitution, according to an apparently broad reading of that document, or precisely that manner of reading denied to the people of Wisconsin, who sought only a reasonable — indeed, a practically de minimis — access to the legislative activities of their representatives.

The Republican legislative leaders betrayed even that.

Of course the largest irony of all is that the Gableman court attempts to validate its fiat on separation of powers grounds, but yesterday's decree indicates nothing except an amalgamation of partisan, political powers.

This space will return at the end of the month, fully recharged.