Shorter Kloppenburgs

Quick impressions of candidate for Wisconsin Supreme Court JoAnne Kloppenburg's interview with the Appleton Post-Crescent yesterday.

Themes: David Prosser is an unreconstructed partisan / Michael Gableman / rules for judicial recusal. Prosser has failed to lead the court out of internecine turmoil. Kloppenburg's record is 6-1 (with one pending) in Supreme Court arguments. Reminds us Wisconsin Manufacturers & Commerce- and Wisconsin Realtors Association-drafted rules for recusal were adopted verbatim by Prosser et al. Response to viewer question: Hasn't got in touch with her boss, Attorney General J.B. Van Hollen, for endorsement yet (doesn't have his personal phone number). Doesn't care who Prosser contributes to or who supports him, Kloppenburg's perceptions of Prosser are formed from his own statements. In re ongoing political uproar out of Madison: Voters don't want me to prejudge current events at the Capitol, but some statements Prosser has made indicate his prejudgment. Quoting Prosser: "You can take the man out of the legislature, but you can't take the legislature out of the man." Judges shouldn't rule in fear of being swept from office by third-party special interest groups (citing Iowa's recent experience over SS marriage).

Video here (approx 40 min).

And, from last week, a candidates' forum in Waukesha (audio only) with Justice Prosser on hand to offer rebuttals to some of the above.

Randy Hopper "lobbyist" a misnomer

A reader points out that State Sen. Randy Hopper's unraveling imbroglio — a complaint* hit the attorney general's desk the other day — involves "lobbyists" who are not registered with the State.

* Also, Sen. Hopper has hired a professional out-of-State agitator.

What's in the Randy Hopper today

Madison's Channel 3000 reports:

It is correct that my husband, Randy Hopper, started an affair in January 2010 with a then-25-year-old Republican aide.

Closer to home, the Milwaukee Journal-Sentinel's Dan Bice apparently doesn't care for the story, on privacy grounds. And insofar as this is an obviously painful personal situation, Bice's scorn is not misplaced.

But this is no longer a case of "liberal bloggers" circulating a rumor. By writing a letter to the press, it's something one of the interested parties wants the public to know about. She didn't have to do that.

Hopper teevee spot: "Madison's broken. The system needs overhaul."

eta:

Hopper’s campaign spokesperson Jeff Harvey wrote "Senator Hopper maintains an apartment in the district where he lives." . . . The address provided is not an apartment, but a Town of Empire home co-owned by a campaign contributor who is also an employee of a radio station owned by Hopper. The radio station employee has yet to return a call from WKOW27 News seeking comment on whether Hopper is residing in her home.

Hopper's residence uncertain

That can't be good.

In Wisconsin, it's hard to say who's in contempt

Bit of the old in out in out of contempt

The black letter law says:

Each house may punish as a contempt, by imprisonment . . . for one or more of the following offenses: . . . prevent[ing a] member from voting.

— Wisconsin Statute § 13.26

A petulant Republican State senator says:

[A]ll 14 Democrat [sic] senators are still in contempt of the Senate. Therefore, when taking roll call votes on amendments and bills during executive sessions, Senate Democrats' votes will not be reflected in the Records of Committee Proceedings or the Senate Journal. They are free to attend hearings, listen to testimony, debate legislation, introduce amendments, and cast votes to signal their support/opposition, but those votes will not count, and will not be recorded.

— Sen. Scott Fitzgerald

A Wisconsin Supreme Court justice says:

[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. Protecting the First Amendment rights of all voters to cast votes that could not later be cancelled by the acts of others was a primary concern of the court in the rule that was enacted.

— Justice Patience Roggensack

Roggensack was referring to a rule governing the recusal of judges in cases, but the fundamental constitutional principle is the same and applies equally to Fitzgerald's Diktat. She meant that when a judge is excluded "by the acts of others" — as opposed to of their own volition — from hearing a case without what in Roggensack's view is good cause, the voters' First Amendment rights of speech and association are abridged, in that their elected representative judge is silenced.

And a majority of the court — the so-called conservative bloc — concurred with Justice Roggensack's own vote in enacting the rule.

Strictly speaking, Scott Fitzgerald isn't preventing the 14 Democrats from voting; he's letting them vote. He's just refusing to count their votes, an "act of others" which is little different from preventing their votes, if "voting" is to have any meaning at all in § 13.26.

While each branch of government's self-regulation is to some extent immune from the scrutiny of any other branch,* none of the branches may violate the 14th Amendment — it makes the First Amendment binding upon the States — which regulates the operation of all three.

In other words, it's one thing to be found in contempt (and "disorderly behaving") according to some application of Robert's Rules of Order to a political squabble within the legislature, but it's quite a different thing for a legislative leader to be contemptuous of the Constitution.

And while the Wisconsin constitution empowers Fitzgerald and his conservative Republican allies to mete punishment against their colleagues, no constitution empowers them to punish citizen voters.

On the other hand, Fitz's noise is sweet music to recall organizers.

* And in some instances even immune from itself, where the statutes expressly authorize their own subjection to parliamentary rules.

That waning opposition in Fitzwalkerstan

Which Walker/Fitz are depending upon: According to Graeme Zielinski, signature-collectors had in hand 14,000 toward recalling the eight eligible Republican Senators as of last Monday. Today they have 56,000. If that's waning then I don't want to know what waxing is.

Walker's Department of Administration* estimated the crowd in Madison as of 2 p.m. Saturday at 49,500 (which sure looks accurate and precise, doesn't it). Turns out there were a few more than that.

* It of $7.5 million in damages fame (later discounted by 95%).

Ann Althouse's legal research 101

Ruh roh: Inexplicably popular Wisconsin blogger/reported professor of law Ann Althouse is in horrified semi-dudgeon over a remark made by State Supreme Court candidate JoAnne Kloppenburg:

At a forum at the Waukesha County Courthouse [Thursday]:

"Justice Prosser has sent a clear message that he will favor the agenda of Gov. (Scott) Walker and the Republican Legislature," Kloppenburg said. "I will apply the law to the facts of the cases before me and decide them without prejudice."

What is her basis for attributing a "clear message" like that to Prosser? If she doesn't have a solid basis for that statement — and I can't see what it is — how is that supposed to jibe with her self-image as a dutiful applicant of law to fact?

Ever the keen observer, Prof. Althouse* proceeds to link to a column by the Isthmus's Bill Lueders which clearly describes Kloppenburg's "basis" and further provides Kloppenburg's own statement:

In a press release on 12/8/2010, the Prosser Campaign promised that returning the incumbent to the bench would "[protect] the conservative judicial majority" on the Court which would then be able to "act as a common sense compliment [sic] to both the new administration and legislature."

Twice, right there in Althouse's own link, yet: "I can't see what it is."

It's old news anyway.

Pro Tip: Read own links before engaging the fauxtrage.

* That comments thread is hilarious.

WPRI "senior fellow" is hot on the trail

Conservative think tank's breaking report:*
This Supreme Court race just got a lot more interesting

About a month ago, yeah.

[T]he campaign makes no secret of the fact that, during law school, [Wis. S. Ct. candidate JoAnne Kloppenburg] interned for the liberal stalwart, Chief Justice Shirley Abrahamson.

Why would she make it a secret? Because she's scared of WPRI "senior fellows" rummaging around in her résumé? More importantly, Kloppenburg has been a law enforcement officer for the last 21 years, which is undoubtedly a less convenient fact for the WPRI crowd.

It's good they're finally paying attention, however.

* The op-ed page used to be kept clear of advertising.

In re Randy Hopper: Only 15,268 signatures to go

Recall organizers having reportedly obtained the support of the State Senator's estranged wife: Via Mal Contends and Blogging Blue.

Little of the above appears to have been confirmed by more traditional means, but it is true that Randy Hopper, Republican of Fond Du Lac, is embroiled in divorce proceedings and headed for trial, and it is true that Persuasion Partners Inc. scrubbed Sen. Hopper's alleged Madison girlfriend from its website yesterday.

Domestic arrangements substantially similar to marriage neither valid nor recognized in this State.

— Shorter Wis. Const., J. Appling, ed.

Persuasion Partners is a Republican PR/lobbying outfit operated by Darrin Schmitz,* famed orchestrator of the notorious Mike Gableman for Wisconsin Supreme Court campaign of 2007/08. Schmitz helped Gableman get formally charged with ethics violations, a case that dragged on for many months and the charges remain pending against Gableman: the State Supreme Court split 3-3 on its disposition, with Justice David Prosser, who himself stands for reelection on April 5, holding in sympathy with Gableman's aggressive rationalizations.

Hopper is believed to be the most vulnerable of the eight Republican State Senators against whom recall efforts are underway. If organizers can topple three of them then Democrats might regain control of the 33-member body. The others would most likely be the 8th Senate district's Alberta Darling and the 32nd's Dan Kapanke.

Sen. Darling's constituency presents an interesting challenge, as it straddles the affluent and increasingly liberal northern lakeshore Milwaukee County suburbs and the three most defiantly conservative counties in the State: Ozaukee, Washington, and Waukesha.

Sen. Kapanke's district spreads over five counties along the State's western border. Kapanke won the district in 2008 but narrowly lost the most populous (by far) of the five, La Crosse County. So the signature-gatherers know exactly where to concentrate their labors.

As for Randy Hopper, he should probably just resign.

* Schmitz calculated then-circuit court judge Gableman's rate of reversal on appeal by counting as cases thousands of uncontested traffic tickets, which Schmitz claimed Gableman had "presided over."

That a sly (or possibly clueless) partisan operator would pull such a risible stunt is unsurprising, but that a State judge with an advanced degree in law would let him get away with it is almost beyond belief.

Hitler comparison appropriate for once

Progressives in the news:

"Defective people. ... You know the mentally ill, the retarded, people with physical disabilities and drug addictions — the defective people society would be better off without. ... Hitler did something right, and I agree with (it)."

It was not clear when the lawmaker switched to the Republican Party

Scott Walker, Fitzgeralds join cast of Glee

From the desk of the choir director:






We knew they were gloating, but this is ridiculous.

According to the Democratic Party of Wisconsin, the delightful festivities continue tomorrow in Washburn, WI: "Scott Walker is set to join Hollywood Sean Duffy Saturday night for a congratulatory champagne toast to their chief patrons, the Koch Brothers." Whereupon as many as ten thousand protesters are expected.

Ed Garvey should show his work

This is a noteworthy claim:

Wisconsin Manufacturers & Commerce put about $6 million into [Wis. S. Ct. Justice David Prosser's] campaign.

For one thing Prosser went the public financing route, so his campaign can't accept WMC contributions. For another, Prosser was appointed to the court. And another, he ran unopposed in his only election to the office. So how did WMC put $6M into his campaign?

Or is that a prediction.

Fitz admits: Scott Walker's been lying for weeks

To wit: By insisting at press conference after press conference that union-busting provisions in his so-called budget repair bill are "fiscal" in nature, for the purposes of the Wisconsin constitution. Fiscal bills require the supermajority in the State Senate which 14 Democrats camped out in Illinois have been denying Walker since mid-February.

Last evening State Senate Republicans stripped the provisions from the larger bill — which they could have easily done straight from the get-go — and are moving them quickly through the legislature, having evidently calculated that the national uproar they've created simply in threatening to bust the State employees' unions would be tougher to ride out than the impending uproar over actually busting them.

It appears Scott Walker's insistences were based on pure political disingenuousness; he did not campaign on the question of stripping public employees' of their collective bargaining rights although it was his and his right-wing financiers' plan all along, as he revealed and reinforced during an astonishing 20-minute telephone conversation with a prankster he believed to be Kansas-based oil billionaire David Koch, whose "grassroots" front outfits are jacking up their attacks on Wisconsin workers despite the burgeoning support for the latter.

The Republican leader of the Wisconsin state Senate says there will be no vote on a bill taking away union rights for government workers until Democrats return. ... Scott Fitzgerald says he will not attempt to pass any portions of the bill without Democrats present. — Associated Press, 02/21/11

So Scott Fitzgerald hasn't been entirely truthful either, because he began that process last night. The State Assembly will take up Fitzgerald's truncated bill this morning. One vote to watch is that of Rep. Jeff Stone, who is running for Milwaukee County Executive.

That election takes place just around the corner on April 5.

Stone voted for the full budget repair bill previously, but then expressed misgivings about the union-busting provisions, the ones now isolated from the rest. (Xoff notes that Stone waffled yet again, during an appearance with the local AM radio clown Charlie Sykes.)

Now's he's got a chance to nail it down, for good or ill, on the record.

Nate Silver's analysis suggests that the pandemonium inspired by Walker and Fitzgerald's reckless maneuverings could well drive Democrats and independent sympathizers to the April 5 poll in greater numbers than Republicans and recent surveys have shown Wisconsin public opinion running two-thirds against Walker's refusal to budge on the Koch-appeasing union-busting provisions.

In the meantime State Democrats have been mobilizing recall initiatives against the eight Republican State Senators who are so eligible and the Dems now claim they will meet the requirements — which are deliberately restrictive and entail collecting tens of thousands of verified signatures within 60 days — in several of those cases. If that proves true, then the "enthusiasm gap" is reclaimed.

Another candidate on the April 5 ballot is the conservative incumbent Supreme Court Justice David Prosser, who tends to form majorities with his three most dedicatedly right-wing colleagues. Prior to his appointment to the court by a Republican governor in 1998, Prosser was a career Republican politician, for a time presiding over the Wisconsin State Assembly. Facing three roughly ideologically equivalent challengers in last month's primary, Prosser managed 55% of the result based on a turnout of only 9.3% of eligible electors.

The two Scotts Walker and Fitzgerald's late night hijinks are undoubtedly rousing the other 90.7% who, according to even conservative pollsters, are overwhelmingly not disposed to look kindly upon Walker's hard-right performances nor anyone perceptibly associated with him, including both Jeff Stone and Justice Prosser.

Whoever wins the Supreme Court election takes office August 1.

Reality continues to amaze Scott Fitzgerald

Your grasp of reality, and control of your caucus as minority leader, continues [sic] to amaze me. — Scott Fitzgerald

Wisconsin State Senate Republican leader Scott Fitzgerald heaps scorn on his Democratic counterpart, minority leader Sen. Mark Miller. The reality is that the 14 Democrats — Miller's entire caucus — remain united in their resistance to the union-busting provisions in Fitz and Governor Scott Walker's so-called "budget repair bill."

Scott Fitzgerald's own personal "reality," on the other hand, involves issuing ersatz "arrest warrants" against his political opponents.

Appearing telephonically on MSNBC's The Last Word yesterday, Fitzgerald strayed far from the reservation by declaring federal stimulus funds improved the State's fiscal situation, and incorrectly attributed a remark of Henry David Thoreau's to Thomas Jefferson.

Fitz also alleged two of the Democrats make frequent visits across the Illinois border to Kenosha, WI, an indication of how phony his "arrest warrants" are, otherwise Fitz would have had the two "carried ... feet first" into the Wisconsin Senate in accordance with the advice of his privately retained Republican attorneys, who recently filed a suit in Oconto County that they had to know they would lose.

Rather, the conservative attorneys did so to obtain an ancillary statement they could present to Fitzgerald, which they didn't quite obtain, but affirmatively claimed they did anyway, in a memo to Fitz.

Meanwhile Walker "speculates" Miller has been on the phone with labor leaders "in Washington or whatever," "with no apparent irony."

Recall (pun intended) that according to a conservative think tank's poll, 65% of Wisconsinites want Walker to compromise, and the only compromise at issue is the continuing right to collective bargaining.

"Collective bargaining will not be taken away."

State Sen. Leah Vukmir lies to citizens last night.

Why should people sit there and be lied to?

"Let's shut up and let her talk." — F. James Sensenbrenner.

Note the ruckus doesn't erupt until the two Republicans flee.

More:

It seemed the elected officials just didn’t like the line of questioning and were on the defensive from the start.

Poor dears.

What has J.B. Van Hollen been up to

From Mike Tate's complaint against Gov. Scott Walker:

16. [Walker] states during the Call [with fake Koch] that he has the Attorney General's office "looking into" strategies to force the Democratic senators to return. This constitutes a misuse of the independently elected office of the Attorney General for primarily political motivations.

Wondered about that meself.

I still can't believe Walker's naiveté/hubris is such that he actually thought he was talking to real Koch. This guy is running the State.

Scott Fitzgerald shames self, office

He oughta be arrested
Capital Times fails Jim Lindgren's laugh test.

(The Journal-Sentinel failed it the other day.)

It's fair to say there is a court in Wisconsin that would most likely be persuaded by Prof. Lindgren's argument. That strong possibility can't in good conscience be denied.

Chris Abele has a new ad out

Jeff Stone might as well just concede.

Not even WPRI can spin this

And they collected the data:

Since mid-November the percentage of people who strongly oppose Wisconsin Governor Scott Walker — who view him "very unfavorably" — has more than doubled from 19% to 41%.

TMJ-4's makeup department better order a few extra kilos of talcum for Charlie Sykes tomorrow morning. Those lights are warm enough.

Even more remarkable:

Half the people in the survey were asked how they felt about "stripping most public employees of their right to collectively bargain over benefits and working conditions as part of a ploy to eliminate public employee unions altogether." With the issue framed that way, 58% opposed it and 32% supported it.

Thirty-two percent support a cunningly dishonest government-run project to take advantage of its own citizens. Isn't that lovely.

eta: On his teevee show this morning, Charlie Sykes took pains to point out that WPRI's pollster Ken Goldstein is a public employee. Doubtless Prof. Goldstein would appreciate this snide ad hominem swipe at his academic and professional objectivity.

Yet despite Sykes's heroic efforts to downplay the significance of the WPRI poll — its sample of respondents skews disproportionately toward union and Democratic households, he claimed — left completely unsaid throughout was the poll's greatest significance: that it comported substantially with a number of recent Statewide and national polls conducted by both Democratic and Republican outfits, all of which substantially comport with one another.

To wit, both Scott Walker and his policies are highly unpopular.

"Really diverse group we've got here today," said Sykes of his panel, which contained two WPRI "senior fellows" and Patrick McIlheran.

McIlheran nominated Scott Walker his "Winner of the Week" while Sykes said of the 14 Democratic Senators that the "adults" among them were being "held hostage by extremists like Chris Larson and Lena Taylor." Sykes also predicted that either the Senate stand-off will end early this week or else it will go on for "months," adding false dichotomy to his ever-expanding repertoire of logical fallacies.

Mercifully, no panelist attempted an analysis of the merits of Republican Senate leader Scott Fitzgerald's ersatz "arrest warrants."

OTOH it might have made Sykes's one-note tedium entertaining.

Patrick McIlheran's, er, notion contradicted

Anita Zeidler: "totally false impression ... making up this stuff."

How unusual for McIlheran. Pathetic and desperately unethical.

More Blackstone for the 14 Senate Democrats

Senate Resolution 1 (.pdf; 3 pgs.):

Resolved, That ... the majority leader shall immediately issue an order to the sergeant at arms that he take any and all necessary steps, with or without force, and with or without the assistance of law enforcement officers, by warrant or other legal process, as he may deem necessary in order to bring [each] senator to the senate chambers . . .

Which the majority leader then proceeded to do.

The venerable William Blackstone, whose wisdom was earlier prevailed upon to justify Sen. Fitzgerald's allegedly boundless authority to compel the attendance of the 14 Senate Democrats:

[F]reedom of speech is particularly demanded of the king in person, by the speaker of the house of commons, at the opening of every new parliament. So likewise are the other privileges, of person, servants, lands and goods, which are immunities as antient as Edward the confessor . . .

This includes not only privilege from illegal violence, but also from legal arrests, and seisures by process from the courts of law.* To assault by violence a member of either house ... is a high contempt of parliament, and there punished with the utmost severity.

Emphasis added. Assault has a fairly straightforward meaning:

The threat or use of force on another that causes that person to have a reasonable apprehension of imminent or harmful contact; the act of putting another person in reasonable fear or apprehension of an immediate battery by means of an act amounting to an attempt or threat to commit a battery.

The enforcement of Sen. Fitzgerald's ersatz "arrest warrants," by their very terms, might easily satisfy any or all of those elements of assault. Arguably, Fitzgerald's "warrants" already have satisfied them, containing as they do threats of force causing the named Senators reasonable apprehension of harmful contact (in particular District 24 Sen. Julie Lassa, who is six months pregnant).

Yet there are those who insist — ironically, by appeals to Blackstone and his even more ancient predecessors — not only that Sen. Fitzgerald's legislative powers are completely unrestrained by the constitution's absolute prohibition against the arrest of legislators, completely unrestrained by the State statute that expressly denies Fitzgerald and his Republican colleagues the power to make a finding of contempt against the 14 Senators (a finding that allegedly justifies the prohibited arrests), but that they are unrestrained by anything:

any and all ... with or without ... with or without ... as he may deem necessary ...

If I were one of the more physically vigorous of the 14 Democrats — Sen. Chris Larson, perhaps, although I bet Sen. Lena Taylor could put up a pretty good fight — I might consider resisting arrest to the extent a Blackstonian assault by Fitzgerald's agents was inevitable.

Fitzgerald's own imprisonment might conceivably ensue, by authority of a statute passed by the very body over which he now presides.

* Note once again the distinction between arrests and civil process.

P.S. Speaking of irony, according to Prof. Lindgren's line of reasoning — which raises a whole helluva lot more questions than it answers — not only might the 14 Democrats not avail themselves of the constitutional privilege against arrest, but neither could Fitzgerald for procuring their arrest. And according to statute, Fitz would face much more severe penalties than simply being "compelled" to return to Madison. It's one of those careful-what-you-wish-fors, apparently.

McIlheran demands Walker's political unraveling

The Milwaukee Journal-Sentinel's award-winning calumnist Patrick McIlheran is rather excited by a trivial observation he found in the National Review, pointing out that Wisconsin Governor Scott Walker's plan to strip public employees of their collective bargaining rights is not a "fiscal bill" for the purposes of the State constitution.

As such, its passing does not require the three-fifths quorum currently being denied the governor by the 14 Democratic Senators reportedly ensconced in Illinois (there are 33 seats in the Senate; Republicans hold 19 so Walker only needs one of the 14 Democrats).

Everyone already knows the CBA-stripping provision is not a "fiscal bill" — nobody more so than Walker, who has continually and practically to an irrational extent insisted that it is, for one obvious reason: If he acknowledged its true intent and purpose, which is to bust public employee unions, the jig is up and the ruse exposed.

Sometimes you almost want to feel sorry for McIlheran.

Perhaps not coincidentally, the NR piece is authored by one Prof. Jim Lindgren, who also wrote the unwarrantedly smug criticism of a couple of Madison lawyers we had a look at here.

Scott Walker tanking

57% disapprove, according to Republican polling outfit

And yesterday a Dane County judge ruled his administration violated the State constitution. That's fairly tankworthy in and of itself.

A Volokh conspirator has been appalled

Wise counsel Lester Pines fails the "laugh test," sez law prof

This is not an unreasonable interpretation. Prof. Jim Lindgren argues that in the Wisconsin constitution's Article IV, Section 15, "all cases" means only "all civil cases" and then later in his analysis, "all cases" means only "all court cases." But that isn't what the constitution says.

What Prof. Lindgren is asserting, in essence, is that the absenteeism of the 14 Democratic Senators is not a "case" at all, and therefore falls outside the "all cases" universe, because the absenteeism is purely a matter within the legislative and not the judicial purview: the constitution doesn't mean what it says. Rather, it says what it meant 241 years ago, when one might be arrested for a civil offense.

Moreover, if "arrest" means only "civil arrest," then somebody needs to explain why the drafters of Art. IV, Sec. 15 separated "arrest" from "civil process" — in two distinct clauses divided by a semicolon and the word "nor" — if the arrest in question is itself a component or function of civil process. Prof. Lindgren has not so explained.

For his historical perspective, Prof. Lindgren relies primarily ("There it is," he exults) on a citation to a Lord Mansfield, anno 1770, which he discovered in a 1908 U.S. Supreme Court case called Williamson v. United States. But the immediately subsequent text in Williamson, upon which Prof. Lindgren studiously does not rely, reads:

Blackstone, in 1765, discussing the subject of the privileges of Parliament, says [citation omitted]:

"Neither can any member of either house be arrested and taken into custody, unless for some indictable offense, without a breach of the privilege of Parliament."

Which is essentially what the Wisconsin constitution says (as do the Wisconsin statutes: see below). So if Prof. Lindgren wishes to rely on the historical antecedents recorded in Williamson v. United States, I should expect that he needs to point at which State or federal "indictable offense" the 14 Democratic Senators have committed.

Because as far as I can tell, there has been none.

Furthermore Prof. Lindgren might be making some serious trouble for himself if he wishes to argue that the alleged offenses for which the 14 Democrats are being pursued are indictable ones, because then he would be turning this episode into precisely the sort of "case" that he claims the Wisconsin constitution does not contemplate.

Concludes Prof. Lindgren, in the form of a quasi-conjunction:

The privilege to compel attendance is just as much a legislative privilege as the privilege not to be arrested in court cases.

"Court cases," however, is Prof. Lindgren's insertion of constitutional language that doesn't exist, based on selecting from two apparently dueling 18th-century British aristocrats. Until Lords Mansfield's and Blackstone's variance is reconciled, Mansfield's alone is unavailing.

Thus reversing Prof. Lindgren's conjunction, we have: "The privilege not to be arrested in cases* is just as much a legislative privilege as the privilege to compel attendance." Quite so. Which is where we began, with the Senate's privilege to compel abutting the Senators' privilege not to be arrested and, with the greatest respect to Prof. Lindgren's appalled state and his laugh tests, he doesn't appear to have solved the problem — if indeed there exists a problem at all.

The plain language demonstrates otherwise.

* "[A]ll cases, except treason, felony and breach of the peace; ... "

P.S. The Volokhians are not always right, you know.

Scotts Walker & Fitz: By any farce necessary

Counselor Plaisted wonders who, exactly, are the scofflaws:

Each house may punish as a contempt, by imprisonment, a breach of ... the privileges of its members; but only for one or more of the following offenses:

(a) Arresting a member or officer of the house, or procuring such member or officer to be arrested in violation of the member's privilege from arrest.

In other words, the Wisconsin Republican Senate leader Scott Fitzgerald and his GOP allies are making themselves liable to imprisonment by having another member of the legislature arrested.

Indeed, an argument might be forwarded that they were liable to imprisonment shortly after 4 p.m. yesterday, on issuing their 14 ersatz "arrest warrants."* In at least one legal sense a "procurer" may be guilty even if the act being procured is never completed.

Attempt is sufficient. See, e.g., this local miscreant.

Admittedly, that context is probably distinguishable from the present one, but given the farcical nature of the Republicans' and their attorneys' own antics, it's not so easily ruled from consideration.

* A sample, via the Wheeler Report, containing the ludicrous charge of "disorderly behavior," which the same above-indented statute suggests is "conduct in the immediate view of either house or of any committee thereof and directly tending to interrupt its proceedings."

Unfortunately the "warrant" does not contain an affidavit from Sen. Fitzgerald affirming that "I can see Rockford, IL from my house."

How many times can Wisconsin Republicans

Violate the constitution in one week: One down and 14 to go.

Club For Grothman assistant speaks

And it's none other than Rick Esenberg, who professes the law at Marquette University. Note Prof. Esenberg's — and the memo he discloses he assisted in preparing — conscientious avoidance of Wis. Const. art. IV, § 15, whose text could scarcely be more plain:

Members of the legislature shall in all cases, except treason, felony and breach of the peace, be privileged from arrest; . . .

All cases. That is, where there is no treason, felony, or breach of the peace — a Wisconsin court of appeals has lately interpreted this provision to include "all crimes" — there can be no arrest.

Sure, the Senate may "compel" absent members; but the acts of compelling must stop somewhere short of arrest, as absenteeism is hardly treasonous, criminal, or in disturbance of the peace.

O! for the olden days,* when "judicial conservatives" purported to honor the plain text of the law, and counsel "restraint." Perhaps Prof. Rick is arguing for something other than arrest, but he doesn't say.

Custody by means of physical force sounds like an arrest to me.

Ultimately, Sen. Fitzgerald and his conservative private attorneys can formulate all of the rules and resolutions they like, but none of them may trump the constitution's commands where they conflict.

And they clearly do here. Pure partisan politics, is what this is.

Much worse, actually, as the memo suggests that Sen. Julie Lassa, who is pregnant, be "carried ... feet first" into the Senate chamber.

I shite you not, dear readers. Win that "PR war," boys.

* Like probably last week when it was otherwise convenient.

Earlier: If Republicans oppose frivolous lawsuits
Later: Scotts Walker & Fitz — By any farce necessary
Breaking: A Volokh conspirator has been appalled

Welcome to Scott Walker's Wisconsin

Where State Senate Republicans have just resolved to apprehend and take into custody a pregnant woman, by force, for political reasons.

The Senate may hold its members in contempt and it may punish those members, but it clearly is neither necessary nor authorized by the constitution to apprehend them through the use of physical force.

Either proceeding can take place with those members in absentia.

But let them try. It's good for the "PR war," which they keep losing.

eta: And the same consortium of private lawyers* is advising Senate Republican leaders which lost its bid in Oconto County yesterday to have a circuit judge violate the constitutional separation of powers.

It would come as little surprise if State attorneys refused to put their names to such a document. Notably, the consortium of lawyers is unable to cite any Wisconsin precedent. Evidently the two Scotts Walker and Fitzgerald desire to set it. For their respective legacies.

* Acting as agent for a Republican party chairman. Fancy that.

Mike McCabe just won't quit

One does not "agree" to be subpoenaed.

Earlier: It's little wonder Prosser lit into McCabe
See also: Justice Prosser "tirade" witnesses multiply

Prosser alternate campaign manager selected

Kurt R. Bauer, head of the State's biggest financial industry trade group, has been chosen to head Wisconsin Manufacturers & Commerce.

— JSOnline

Our campaign efforts will include building an organization that will return Justice Prosser to the bench, protecting the conservative judicial majority and acting as a common sense compliment [sic] to both the new [Republican] administration and [Republican-controlled] legislature.

— Prosser actual campaign manager

Scott Walker's bad faith bargaining

The Wisconsin governor racks up yet another falsehood:

Walker says the State is broke, so broke that there's no money, and because there's no money, he is unwilling to negotiate over the terms of the budget-repair bill.

That's the key. State of Wisconsin employees are fighting to retain their rights to collective bargaining, which they've been guaranteed for decades. Among the more compelling reasons why they should retain those rights is perfectly demonstrated by Republican Governor Scott Walker himself: So they can maintain the negotiating tools to show how shamelessly disingenuous their current employer is.

They should also demand a more honest broker than Walker or any of the other Republican politicians that have been talking up this lie.

And "bad faith" takes on an additional meaning when you consider that even Milwaukee's Catholic (and conservative) archbishop has criticized Scott Walker for his Kochian union-busting tactics.

Madison protester awarded Pulitzer Prize

Or a reasonable facsimile:

A Chicago man was ticketed for allegedly disconnecting extension cords for cameras and lights on a Fox News truck on the Capitol Square Tuesday, Madison police reported.

Fox reporter Mike Tobin: "A guy just hit me."

Under the swaying Wisconsin palms.

Meanwhile in other Fox correspondent news, Sarah Palin, reacting to yesterday's Supreme Court decision in Snyder v. Phelps, claims "[W]e can't invoke God's name in public square," which is complete b.s.

"Public forum" is the constitutional term of art, wherein the government has the least of authority to restrict free speech.

Frivolity in Oconto: That didn't take long

No activist he:

Circuit Court Judge Jay Conley determined that the State Senate "must enforce its own rules" of attendance.

Correct. Straight up separation of powers.

Still no ID of the plaintiff as a GOP chair but this reporter does note that the complaint reads like a Scott Walker election campaign flyer.

If Republicans oppose frivolous lawsuits

Update: Frivolity in Oconto — That didn't take long

Then why does the chair of the Oconto County GOP expect a circuit court judge to stand in for the Wisconsin Senate sergeant-at-arms?

Senator sued over budget tactic — Fox11online.com

It's also uncharacteristic for a conservative to demand that the judiciary insinuate itself into the legislature's business in a case where the Senate has not yet exhausted its own authority to return the named defendant, State Sen. Jim Holperin, to the chamber.

The GOP chair's lawsuit may be seeking to apply pressure to Sen. Holperin, but that's not necessarily a good thing because filing suits for reasons like that is the very essence of frivolousness.

However, if the Republican chairman's suit somehow manages to survive a motion to dismiss, it will be interesting to see the plaintiff expand on his argument that Sen. Holperin's continuing absence discourages tourists from visiting Oconto County, in that Holperin's "fleeing the State" creates a negative impression on vacationers.

If I was a Republican snowmobiler, I might see that as a plus.

Speaking of tourism, come visit the tropical paradise of Madison.

Barthel v. Holperin (.pdf; 12 pgs.)

eta 1: Both the Milwaukee Journal-Sentinel and WisPolitics.com are referring to Mr. Barthel as "a Lakewood man," which is true, but his status as a Republican party official seems more significant than his hometown, particularly where a number of Barthel's allegations are lifted straight out of Republican Governor Scott Walker's playbook.

eta 2: A report on the Senate leadership's ongoing efforts to "compel" the return of the 14 Democrats. No judge is likely to step in and interfere with those efforts. The State constitution both authorizes that body's rulemaking and mitigates against judicial intervention.

eta 3: "The court action is partly funded by Wisconsin Club for Growth [a.k.a. Koch Industries], which is advised by R.J. Johnson, who worked as a political strategist for Walker's campaign."

— Journal-Sentinel

Is this really what the courts are for?

Wisconsin Governor Scott Walker's Palace Guard

Scott Walker's Department of Administration requires identification from the Chief Justice of the Wisconsin Supreme Court on the steps of the Capitol while allegations surface that Governor Walker spirited supporters to his budget speech through an underground tunnel.

If the latter is proven tomorrow, this is truly a disgrace.

eta: Men In Black

Suspicion falls on Real Walker, not Fake Koch

Beautiful, beautiful.

Remember that goofball blog post by the right-wing law professor in New York suggesting fake Koch committed a Wisconsin felony?

An alternative view, from Dane County DA Ismael Ozanne:

Ozanne said he would be interested in knowing more about what conversations the governor had with others about planting instigators in the mass of peaceful demonstrators outside the Capitol. "At this time I do not find any criminal liability," Ozanne said, although he added that he was concerned about the statements Walker made to "Koch."

And unlike Prof. Jacobson, DA Ozanne possesses real authority.

Walker later made the press rounds, insisting the point was that the agents provocateur ultimately weren't planted. Reporters accepted that and moved on. However the more troubling point is that he considered it at all, giving no indication he shut the idea down immediately, which is what should be expected from a governor.

Furthermore Walker said the reason troublemakers weren't planted among the peaceful protesters was not because it was an outrageous and unlawful scheme, but that it would harm his political position.

Presumably those considerations are why the DA remains interested.

What a difference 300,000 protesters makes

Milwaukee Journal-Sentinel, February 12, 2011:

Restoring Wisconsin to fiscal health is not for the squeamish. The medicine is going to be bitter. Gov. Scott Walker's proposals to strip state employee unions of much of their bargaining power illustrates just how bitter.

But Walker is right to do this. He must insist that state workers pay a bigger share of their benefits. And he's right to take steps to compel them to do so.

Milwaukee Journal-Sentinel, February 28, 2001:

Gov. Scott Walker's budget-repair bill is flawed. We support the governor's aim to rein in labor costs but cannot support this bill as written. . . .

But no matter how deep the budget hole, Walker and his Republican allies in the Legislature were wrong to try to bust public-employee unions. Workers have a fundamental right to organize, even when it's inconvenient for the rest of us.

In the latter editorial, the authors criticize as "reckless" the 14 Democratic State Senators for retreating to Illinois to avoid forming the quorum required to pass the so-called budget repair bill. But had it not been for the action of those 14, the Milwaukee Journal-Sentinel wouldn't even be in the position of reconsidering its former wholesale endorsement for Gov. Scott Walker's union-busting proposals.*

So shouldn't it be thanking the 14, or even praising them?

Meanwhile at the National Review Online, Wisconsin Policy Research Institute "senior fellow" Christian Schneider asks himself, "Have the Madison protests made a difference?" and answers himself, "No."

At least the Journal-Sentinel is paying attention, and not creepily leering over "impressionable college girls" under the Capitol dome.

Maybe he's why they were bolting the windows shut there today.

* It also endorsed him for governor in the first place. The local daily hasn't yet gone so far as to enunciate the topsy turvy buyers' remorse reflected in the latest Public Policy Polling survey (.pdf; 5 pgs.).

That could be next.

Fake Koch is a Wisconsin felon: law prof

Via Legal Insurrection. The money parenthetical:

(I do think the section of the law as to harming reputation has unanswered First Amendment issues which were not addressed by the [State v. Baron] case.)

Translation: The statute is unconstitutional as applied to fake Koch.*

It takes a special brand of wingnuttery to suggest a guy who said "Scott! David Koch" in Buffalo, NY, committed a Wisconsin felony.

Maybe Prof. Jacobson doesn't know political lying is protected here.

* As for the other case Jacobson mentions, State v. Lis, he ignores its discussion of a "benefit" to a thief requiring a corresponding loss to the victim. In this case the "victim," billionaire public figure David Koch, suffered no loss other than — arguably — some diminution of his reputation which, as Prof. Jacobson already conceded, invokes the First Amendment defense that protects the fake David Koch.

Well played.

In Wisconsin, collateral ire for Justice Prosser

Another 100K demonstrators gathered at the Capitol in Madison this afternoon (while Fox "News" re-aired a Fox "documentary" about the Tea Party — seriously). The first opportunity Wisconsinites have to express their displeasure at the polls will be on April 5, when conservative Supreme Court Justice David Prosser faces re-election. At left is part of the photo illustrating the local daily's lead story.

Earlier this month, the Koch Industries-funded Club For Growth ran TV ads in support of Justice Prosser, whose campaign had pledged in a press release to "protect the conservative judicial majority" and to act as a "common sense complement" to both the recently installed Republican administration and the Republican-controlled legislature.

Justice Prosser later told WPT's Frederica Freyberg he "never saw" his own press release, and that he "wouldn't have written it that way."

Prosser faces Assistant AG JoAnne Kloppenburg on April 5.

See also BCB: Down in the Northwoods Bunker with Justice Prosser

New Chris Abele ad most effective yet

And he did, under questionable circumstances.

Chris Abele faces Jeff Stone for Milwaukee County Executive on April 5th. Governor Scott Walker (the former Milwaukee County Executive) is by several accounts contending with a recent surge in unpopularity.

Wisconsin, where any animal means any animal

Strict construction FTW:*

I'm going to go out on a limb here and, without even having seen a motion or heard an argument, predict that the cruelty charge(s) will be reinstated. This has been a Cognitive Dissidence exclusive (the latest of many). — June 13, 2009

[W]e reverse the orders of the circuit courts dismissing the charges against the Kuenzis. We remand with directions to reinstate the charges in both cases. — February 24, 2011

You're welcome.

* ¶16 To sum up, § 951.02 prohibits "cruel" treatment of "any animal." The term "any animal" is broadly defined so that, on its face, the term encompasses the wild deer at issue in this case.

Scott Walker "considered creating safety risks"

That's how Madison's chief of police sees it. Walker spokesman Cullen Werwie blows the chief off, despite Governor Walker's concerns over insinuating wing-nut agents provocateur into peaceful protests being not ones of public safety, but of covering his own political backside.

Also, here are Scott Walker's touching professions of ignorance to Appleton, WI's Greta Van Susteren, late of the Fox News Network.

eta: Madison mayor "furious"

Flashback: Fake Sarkozy calls Palin.

Wisconsin: Must be a slow crime day

MADISON (AP) — Wisconsin State patrol officers are being dispatched to the homes of several missing Democratic State senators in the hopes that it will spur some of the lawmakers to come back in session to break an impasse on a budget bill.

The senators are not home. What purpose does intimidating their families serve? And Republicans keep telling us about union "thugs."

The Wisconsin State Journal's Mary Spicuzza reports that the Democratic senators' homes are to be placed under surveillance.

"We're trying about four or five different angles." — Governor Scott Walker, nattering for 20 minutes to a crank caller on Tuesday.

"[I]t's not clear to me that they can't be arrested."

— Right-wing darling professor of law Rick Esenberg

Scott Walker: Fireside chat No. 2

Update: Walker totally fell for it. For nearly 20 minutes.

"They're probably puttin' hobos in suits. That's what we do."

This fireside chat purportedly is with a "David Koch."

"Koch" — [Laughs] Well, I tell you what, Scott. Once you crush these bastards I'll fly you out to Cali and really show you a good time.

Walker — All right, that would be outstanding.

Governor Walker also tells "David Koch" he's got Attorney General J.B. Van Hollen looking into potential felony charges against the 14 Democratic State senators reportedly now ensconced in Illinois.

Walker theorizes that if the 14 Democratic senators are accepting money from unions for food and lodging, the purpose of such payments may be "to keep [the senators] from doing their job." He says that situation is "at minimum an ethics code violation ... We're trying about four or five different angles," adds Governor Walker.

No doubt they'll come up with something (something far removed from Walker's apparent willingness to hop a Koch junket to Cali).

eta: The server is swamped. Dan Cody has the recordings.

Liberals in denial: Andrew Cohen

In The Atlantic, "one of the nation's leading legal analysts" manages to complete his leading analysis without once mentioning the newly discovered power of Congress to regulate your commerce-thoughts.

I would have imagined* that significant.

Instead, analyst Andrew Cohen dwells — apparently approvingly — on Judge Gladys Kessler's inappropriate policy views: Kessler suggests, says Cohen, that "those who do not purchase health insurance are making irresponsible choices that eventually harm others."

It would be one thing if Judge Kessler's admonitory musings were obiter dicta; that is, extrajudicial asides offered separate and apart from the substance of the ruling itself. The problem is they are integral to her reasoning: how else could she arrive at the conclusion that the federal legislative power includes for the regulation of personal decisions taking place wholly in the province of the mind.

Judge Kessler is speaking, Andrew Cohen believes, to all who "refuse to buy health insurance in the name of federalism and the 10th Amendment." I don't know if that's why they "refuse" to buy health insurance, but at least they found something in the Constitution which mitigates against the view that "commerce among the several States" means "among the several states of human consciousness."

That's the same Andrew Cohen, incidentally, who sought to preempt the expected effect of Judge Clyde Roger Vinson's January 31 order invalidating the PPACA in its entirety by dismissing it brusquely as "a stray decision by a conservative trial judge." But today he's enamored with this wildly injudicious exercise of authority by a liberal one.

If this decision is allowed to stand, I'll eat my tricorne cheese-hat.

* This imagining subject to federal regulation.

More: Liberals in denial.

Albeit no substantial burden on the Christian faith

"Economic Decision-Making Is an Activity Subject to Congress's Commerce Clause Power," announces the United States District Court for the District of Columbia, Judge Gladys Kessler presiding.

With respect, I've a really hard time not finding that preposterous.

The judge even admits she is dealing with "mental activity," and proceeds to brook no distinction between it and "physical activity" for the purposes of assessing federal regulatory power. I mean, wow.

Just ... wow.

Mead v. Holder (.pdf; 64 pgs)

WPRI "nonpartisan research" revealed

Apparently it involves Googling "impressionable college girls."*

Creepy. What's he doing at the State Capitol, stalking?

* You may take that about as seriously as their actual research.

On teh web: WPRI.

Wisconsin GOP shenanigans "certainly" illegal

Last Friday, Wisconsin Republicans scheduled a vote in the State Assembly for five p.m., then started taking the votes several minutes before, prior to the Democrats arriving in the chamber.

Bob Dreps, a lawyer who handles open government cases, said voting before the scheduled start time for a legislative session "certainly violates" State law.

The vote was then rescinded, and as Dreps says, rescinding it moots any court challenge, but that doesn't make the voting any less illegal.

Meanwhile those same Republicans and their leader, Scott Walker, are busy excoriating Senate Democrats for avoiding a vote in that other chamber. Yet are those Democrats doing anything illegal?

No. Only the Republicans broke the law.

The only thing we have to fear is Walker's BS

MADISON (AP) — Gov. Scott Walker says he plans a live "fireside chat" with Wisconsin residents on Tuesday night.

There is a bogus Heritage Foundation/Americans For Prosperity/Koch Industries talking point making the rounds at the moment, and Scott Walker simply means to insult your intelligence by repeating it.

FDR was not opposed to the state entering into collective bargaining agreements with its employees. He — like every other rational political actor — warned against "militant tactics" endangering essential state services. By militant tactics he meant strikes and no matter how many times Scott Walker's enablers* lie about it, nobody went on strike last week, and nobody went on strike today.

* Whose ranks are dwindling, according to some very recent polls.

eta: Golly, who could have seen that coming.

Gov. Walker's necktie treated for smoke inhalation

Pants On Fire: It's not so bad lying to Charlie Sykes; Milwaukee's medium wave wing-nut squawker can't tell the difference anyway.

Madison: Truth v. Sykes

Sykes: Busing in union thugs.
Truth: Phoning in tasty pizzas.