Arrest these six Wisconsin Republicans today

1. arrest v. — seize someone and take them into custody
2. arrest v. — stop or delay progress or a process

On March 3, 2011, these six Wisconsin State Senators, Robert Cowles, Alberta Darling, Sheila Harsdorf, Luther Olsen, Randy Hopper, and Dan Kapanke, endorsed a resolution by their legislative leader, Scott Fitzgerald, to issue arrest warrants, in the sense of definition 1. above, for 14 of their political rivals. They did so on the flimsiest of alleged legal bases, and in fact on legal bases manufactured from the deliberate misreading of an adverse decision issued by an Oconto County court.

And amazingly, they did this not in the Soviet Union but in America.

Today, many Wisconsin voters have the opportunity to arrest the six named Republican Senators, not according to the lawless means by which those Senators acted, but in the sense of definition 2. above, to impede the progress of a radical Republican agenda in which all three branches of State government — including the highest court — are complicit.

Also in March, Republican legislators broke the law — and admitted they broke the law — by convening a twilight gathering in clear violation of the State's open meetings statutes, which give effect to the Wisconsin constitution's guarantee of public access to government proceedings.

On June 14, in perhaps the most radical act of the current regime, the State Supreme Court, by a bare majority of Republican judges and in an unsigned, unexplained order, invented a novel form of judicial authority through which they blessed the illegal acts of the Republican legislators.

Some, including the editorial board of the Milwaukee Journal-Sentinel, the State's biggest newspaper, have complained that today's elections misuse and betray the spirit of the people's constitutional power to recall their elected representatives. They complain that the constitutional recall mechanism should be reserved for more serious misdeeds in office, not just for disagreements with those representatives' policies.

But Wisconsin voters have to wonder, what more serious misdeeds of office can there be than ordering State law enforcement officials to arrest their political rivals? What more serious misdeeds of office can there be than violating a collection of statutes intended to guarantee the people of Wisconsin merely the barest access to the deliberations of their government? What more serious misdeeds of office can there be than cheering on a court to fabricate its own unprecedented authority?

I can think of none. Arrest them. Or else just arrest any three of them.

See also: Alberta Darling's deliberate indifference to suffering

Interlude

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.

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.

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."

Your Wisconsin Republicans in the news

Johnson calls on Weiner to resign — actual Associated Press headline

First up, embattled State Senator Dan Kapanke is a comical liar. The absurd claims of Wisconsin Secretary of Building Maintenance Mike Huebsch were thoroughly debunked ages ago, yet Kapanke repeats the lies to members of his Tea Party constituency, which is even insulting to the intelligence of the Tea Party constituency, because at least the Tea Party constituency pays attention and follows the political news.

Next, James Troupis, Republican lawyer-for-hire, participates in a panel devoted to restoring the appearance of civility on the Supreme Court, reports @WisPolitics. Troupis filed a frivolous suit in Oconto County he had no chance of winning, and then mischaracterized the court's order in a legal memorandum to Republican State Senator Scott Fitzgerald, who Troupis & Friends advised to capture a seven-months-pregnant woman and have her "carried ... feet first" into the Capitol building. Then Troupis billed the State $27K for his and his associates' labors.*

Incidentally Fitzgerald did indeed issue 14 ersatz "arrest warrants" pursuant to Troupis's legal advice, which none other than Dan Kapanke endorsed. No word on whether Kapanke voiced concerns over scuffing a limestone pier with the prone body of a seven-months-pregnant woman.

Finally our old pal Oshkosh millionaire Ron Johnson, who's raised some eyebrows with millions in "virtually interest free" loans Ron Johnson's company made to Ron Johnson, but before Ron Johnson decided to run for the U.S. Senate. Johnson got famous last year when it was learned he'd secured millions more in government-underwritten bonds, which also guaranteed Ron Johnson favorably below-market interest rates.

Then Ron Johnson got more famous as a gigantic hypocrite when he attacked his political opponent, Sen. Russ Feingold, for favoring precisely the same type of government largesse from which Johnson's plastics company benefited, and within precisely the same industry as Johnson's.

(Johnson's staff now includes erstwhile JRN calumnist Patrick McIlheran.)

This has been your Wisconsin Republicans in the news.

Boehnerus: Ohio Republican who "tested positive for Viagra" in the news

Visit the Archiv:
Huebsch
Troupis
Industrial revenue bonds

* Never did find out what the heck's the difference between a $290-an-hour Republican lawyer and a $295-an-hour Republican lawyer.

MJS right-wingers to "elevate level of discussion"

Hilarious.

Notes Milwaukee Journal-Sentinel editorial page editor David Haynes: "Another writes regularly for a local think tank." Except three of them do, in addition to a fourth who writes regularly for WPRI, but he already has a regular column in the Milwaukee Journal-Sentinel. What Haynes also fails to mention is that Rick Esenberg's Kulturkampf boutique law firm — which last I heard consists of Prof. Rick and Mike Gableman's former law clerk — is in essence a subsidiary of the Bradley Foundation.

Here's Prof. Rick "elevat[ing] the level of discussion."

And some observers may recall Prof. Rick's lojinks last spring, when he and his compadre James Troupis filed a frivolous lawsuit in Oconto County, the distorted fruits of which they used to underpin 14 comic faux-arrest warrants against the State's Democratic Senate caucus.

Whose idea was it to let this character teach law at a university?

Glad I got the hell out of there before he turned up.*

* Although I admit I was sworn to the bar by Justice David Prosser (following an extended homily on professional ethics, ironically enough).

Of course it could have been worse: it could have been Mike Gableman.

Discover Wisconsin: You're Hmong gangs

There's no place in criminal complaints for political correctness:

Mr. Boyd further stated that after the fight, they went to the Citgo gas station, at which point the Asian males pulled up in the same vehicle and started shooting. Mr. Boyd stated that he was shot in the stomach. Mr. Boyd identified the shooter as Asian, but stated that they "all look the same."

State of Wisconsin v. "Shotcaller" Yang (.pdf; 67 pgs.)

Impressive (and highly informative) piece of law enforcement work, although it appears they still have a few arrest warrants to execute.

Wisconsin: It's about time to fire Franklyn Gimbel

Dear sir, your account is net 60 days in arrears.

Admits veteran Milwaukee attorney Franklyn Gimbel, who the Wisconsin Judicial Commission retained to "assist in the prosecution of [the] formal action" against State Supreme Court Justice David Prosser:

“Even though there's nothing in the statutes that requires [an order from the Supreme Court], apparently there's some past practices where that's happened,” Gimbel said.

Apparently?!

This guy filed a formal complaint against Prosser two months ago and he's still stuck on "apparently"? "Apparently," Mr. Gimbel's done little more than look at the Supreme Court's online dockets for a few prior Judicial Commission cases — including two which were filed against Prosser's Republican Party colleagues, Justice Annette Ziegler and Mike "Peppercorn" Gableman; that makes three out of four Republicans* on the court being the respondents in formal disciplinary actions — and was seeing the word "order" at the left hand side of the docket notations.

That isn't law. That isn't even doctrine. And it isn't even past practice, as former Justice Janine Geske points out in the same Shepherd Express article, it's a "referral," a mere acknowledgement. It's like an entry on an accounting ledger. According to Mr. Gimbel, Richard S. Brown, the chief judge of the Court of Appeals who is mandated by State statute to convene the three-judge panel which is to hear the Commission's case, is "waiting for an order from the Supreme Court before proceeding."

I hope he's not holding his breath because there ain't no such thing. The Supreme Court has no authority anywhere to withhold an order that doesn't exist in — nor is even contemplated nor implied by — the law.

The operations of the Wisconsin Judicial Commission's investigations and prosecutions in both ethics and disability cases are at arm's length from the Supreme Court and that arm is a detachable, detached prosthetic.

Seriously, if Gimbel hasn't gotten to the bottom of this after 60 days, it's time for the Commission to hire somebody who will do it. Hell, if David Prosser's Republican buddy Scott Fitzgerald can conjure up fake arrest warrants based on bogus premises derived from frivolous lawsuits, then somebody can compel Judge Brown to obey the clear directive of the State statutes and get on with entertaining the Prosser prosecution.

A prosecution that is separately mandated by State statute — it's one thing to disobey the law, it's another to obstruct its progress on a distinct procedural track: Here now we have both happenstances.

And Ed Fallone is correct, as usual: "[M]y guess is that they do not want to have a three-judge panel of the Court of Appeals issue a negative ruling against Prosser." Quite so. And they'll ignore the law to avoid it.

Even the chief judge of the Court of Appeals will ignore it. "Apparently."

What a travesty. Of the law. Courtesy of alleged judicial conservatives.

The latter phony pretense being the grandest farce of them all.

"Your precious belief that we have a government of laws in Wisconsin never fails to amuse." — @BrewCityBrawler

Fortunately that's still funny, but admittedly a little less so this morning.

* The fourth Republican is "hypocritical" and makes stuff up.

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.

Wisconsin's Scott Fitzgerald is a skilled politician

In news from the People's Republicans of Fitzwalkerstan:

"I would just be somewhat cautious in whatever we do so that it doesn't end up creating sympathy for the Dems," Tad Ottman, a Fitzgerald aide, wrote to his chief of staff.

Scott Fitzgerald, the GOP leader of the State Senate whose petty arrogance is the stuff of national legend, proceeded to issue 14 ersatz arrest warrants for the Democrats, supported by a legal memorandum which advised having a six-months-pregnant woman "carried ... feet first" into the Capitol building in Madison.*

I shite you not.

The authors of the memo insisted that Fitzgerald's authority to "compel" the attendance of the 14 Senators was without limit.

And evidently Fitzgerald took them seriously.

I spotted one of the 14 in a room in Shorewood the other night and made a point of shaking his hand vigorously and thanking him.

Fitzgerald, I guess you can thank the "Tea Party" for him.

* Ironically, a Dane County circuit court judge found that Fitzgerald's accomplice, Gov. Scott Walker, violated the Wisconsin constitution when he barred pregnant women from entering the Capitol building.'

Damned if you "carr[y] ... feet first," damned if you don't.

eta — Fitz lawyer: Dems' departure was a 9-11 type emergency

Blessedly, those charnel houses resist trivializing by dint of the extravagant delusions of grandeur of a Republican-for-hire lawyer.

Closing statement on Fitz Van Walker arrogance

For the record, Tuesday, March 29, in the Year of our Lord 2011:

I'm frankly surprised to hear the attorney general's office indicate that they considered the previous [temporary restraining] order to be in effect since, as near as I can tell from having read the newspaper, the Department of Administration and the Senate president seem to be proceeding under the assumption that they are not restrained, that there is no order enjoining the further implementation of this Act. So I don't know what it takes for the court to communicate to the attorney general's office in a way that is sufficiently effective to alert them to the fact that there is to be no further implementation of this legislation until this court has ruled on whether or not a permanent injunction is to issue. I had thought the court had ruled last time [March 18] that there was to be no further implementation. I had thought the court had ordered last time and made it very clear that the secretary of state was not permitted to issue a date of publication. The secretary of state acted in furtherance of the court's order and everybody else who was apparently, I presume, taking advice from the attorney general was acting in violation of the order.

— Robert Jambois, atty. for Assembly Minority Leader Peter Barca

The hearing continues Friday* and it is not going well for JBVH & Co.

Mostly because their case is threadbare and they're reduced to simply objecting to all evidence save the courtroom's wallpaper and drapes.

And frequently demanding recesses and adjournments, each of which was denied. Whether those demands are designed to forestall the inevitable or buy the Walker administration more time to unlawfully enforce its allegedly non-fiscal budget "repair" bill, who knows.

The most oft-repeated word they heard today was "overruled." JBVH attempted to rescind his motion to the court of appeals after it was already certified to the Supreme Court and his agent in circuit court, assistant AG Lazar, flagrantly contradicted the legal arguments set out in JBVH's paper filings (again). "Train wreck" springs to mind.

I don't hold it against AAG Lazar, however, as she appears to be doing the best she can with what she's got, and that ain't much.

The court has yet to declare or reach the question of whether "2011 Wisconsin Act 10 has not been published, within the meaning of the Wis. Stat. §§ 991.11, 35.095(1)(b),** and 35.095(3)(b)." But it will.

* April Fools Day, the third anniversary of Mike Gableman's election.

** 35.095(1)(b) defines: "'Date of publication' means the date designated by the secretary of state under sub. 3." These are precisely the statutory provisions discussed at this blog below. In other words, the court will frame its disposition to the question of whether the Act has taken effect just as did the approach here.

Prophecy, is what Oliver Wendell Holmes, Jr. called the law.

Obviously your humble correspondent concurs.

eta — From the Milwaukee Journal-Sentinel:

Marquette University law professor Richard Esenberg said he was not surprised by the ruling but criticized the judge.

That is so emblematic of the depressingly predictable right-wing response pretty much in its entirety, with their standard ad hominem fallacies. What constructive purpose they serve, I have no idea. Prof. Esenberg likes his WWII-vintage case, but a number of things have changed since then, like, the enactment of the Open Meetings Law, which enshrines several guarantees to the public tied directly to the State constitution, which trumps any dusty old case (esp. pre-1901).

Having followed the bulk of the hearings so far, it's clear Dane County Judge Maryann Sumi is aware of Esenberg's concerns, has relegated them to their proper place of relative insignificance, and is admirably conducting a complicated proceeding while owing no duty to communicate to the right-wing professor of law her every rationale.

Speaking of duties, does not the Journal-Sentinel have a duty to disclose the fact that Esenberg has lately been acting as counsel to Republican Senate leader Scott Fitzgerald? Prof. Esenberg was among the Republicans-for-hire attorneys who filed suit on behalf of the Oconto County GOP chairman, a suit they had to know was frivolous, seeking an ancillary statement from the judge which they did not receive but claimed they did in a memo to Fitzgerald, which memo Fitzgerald used to bolster his ridiculous ersatz "arrest warrants" issued against 14 of his Senate colleagues (all Democrats, naturally).

The legal memo advised Big Fitz he could direct law enforcement officers to have a six-months-pregnant woman*** seized into physical custody and "carried ... feet first" across the Senate threshold.****

Fitzgerald in turn acted on the basis of that advice.

More recently Esenberg deposited a risible piece of propaganda at NROnline shilling for the conservative Justice David Prosser, which begins by misattributing to Jean-Paul Sartre a sentiment delivered by a character in one of the philosopher's anti-Communist plays.

By Esenberg's reasoning Shakespeare was a bloodthirsty murderer of Scottish lairds and Sam Shepard an intellectually challenged hillbilly.

Prosser, alleges Esenberg, is a "moderate conservative" because he once in awhile does not join a hard-right three-justice bloc and who "received overwhelming public support in his election to his current term" without mentioning that Prosser was the only candidate on the ballot. Yet if you read the Journal-Sentinel, you'd think Esenberg was some detached academic, which is far, far from the actual reality.

*** Who had done nothing whatsoever unlawful.

**** Face down or face up was left to Big Fitz's wise discretion.