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.

Wisconsin Supreme Court footnote

What Dane County Circuit Judge Maryann Sumi enjoined in the spring of 2011 was the publication of Act 10, and not Act 10 itself nor any of its provisions (the "substance" of the law). Act 10 had already been enacted. The legislative process was completed. There was nothing left for the legislature to do. What remained for Act 10 was purely administrative. Bear that in mind during the inevitable storm of right-wing bullshit* should Judge Sumi decide to run against Roggensack.

* The Bradley Foundation's publishing house has started already.

Jim Troupis, professional Republican concern troll

Here we go:

Troupis was disappointed Judge Sumi is considering a run. "It's obvious she was talked into it because of Act 10," Troupis said. "It should be about competence and qualifications, and clearly the only purpose of her running is to open that pro-union stuff."

What a dyck. And I'm sure Sneerin' Rick Esenberg won't be far behind.

Meanwhile have some facts, not foolish, condescending speculation:

Judge Roggensack affirmed Judge Sumi 12 out of 13 times

Now this is my kind of Wisconsin election

Judge Maryann Sumi seriously considering Wis. S. Ct. run

Bring it.

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].

Wis. Ct. App. chief judge needs to get to work

Notes otherwise highly astute Milwaukee Journal-Sentinel reporter Patrick Marley, in the 30th paragraph of a 31-paragraph story:

State law does not explicitly say an order from the Supreme Court is needed to create a panel to review a judge's conduct.

Nor even does it implicitly say it. However what State law explicitly does say is that the chief judge of the Court of Appeals shall create a panel. That is a statutory directive to the chief judge. Justice Prosser's is not a case that is "before" the Supreme Court until the three-judge panel has done its work, heard from the parties and their attorneys, made its findings, and published its recommendations. Then the panel's work becomes a thing* that is before the Supreme Court. Thus Justice Prosser's demands that several of his colleagues step aside from his case are unripe, clearly. That the Wisconsin Judicial Commission's complaints are filed initially with the Supreme Court is but mere formal notice.

Obviously that court needs to be made aware that there is a pending complaint against one of the State judges over whom the high court has supervisory authority** in matters concerning a judge's alleged unethical conduct or questions as to a judge's competence or mental fitness.

To put it bluntly, Court of Appeals Chief Judge Richard Brown is failing to comply with an explicit statutory command so long as he waits for the Supreme Court to "order" the formation of the three-judge panel. He himself needs to order that panel's formation without further delay.

The law mandates it. Full stop.

* Neither civil nor criminal.

** The supervisory authority does not extend to cases where justices of the Supreme Court disagree with the legal work — be it procedural or substantive — of a trial court judge. Indeed it was the flagrant abuse of the supervisory authority that led Justice Prosser and his three allegedly conservative sistren/brethren to their unwarrantedly mean-spirited vacating of Dane County Circuit Judge Maryann Sumi's orders last June.

Dispositions such as those are what appellate — and not supervisory — jurisdiction is for and, somewhat incredibly, those same four allegedly conservative justices at the same time dismissed the appeal of Judge Sumi's orders. You want to talk about a dysfunctional court, never mind the much-publicized personal animosity among the justices, look at how this court's conservative majority is sneering in the face of the law.

The law is a pliable concept in many instances but this ain't one of 'em.

What, no bonus for Mike "Peppercorn" Gableman?

"We're broke." — Wisconsin Governor Scott Walker, repeatedly

You have got to be effing kidding me:

Assistant Attorney General Maria Lazar, who defended Walker's collective bargaining law in an open meetings challenge and has handled the State's defense of Republican redistricting legislation, got a $1,000 bonus and a $1.50-an-hour raise in March, bumping her salary by more than $3,000 to $104,730.

Deputy Attorney General Kevin St. John, who defended the collective bargaining law in front of the State Supreme Court, got a $2.51-an-hour raise in March that adds up to more than $5,000 per year and brings his pay to $134,307.

Some defense.

Ms. Lazar admitted in a Dane County trial court that the Fitz Van Walker regime both broke the Wisconsin Open Meetings Law and violated the State constitution, which was pretty much dispositive in Judge Maryann Sumi's decision to enjoin Act 10, Scott Walker's "signature" union-busting "achievement"* and Mr. St. John, the lead attorney by the time the case got to the State Supreme Court, would have by rights lost that case but not for the alleged "conservatives" on the court dreaming up a jurisdiction unauthorized by the constitution.

Oh and by the way, contrary to the AP story, St. John & Co. were not "defend[ing] the collective bargaining law," they were defending the Wisconsin Republicans' breaking the law and violating the constitution.

This is what passes for meritoriousness under Scott Walker. Incroyable.

* From the MJS's comically fawning report of Walker's "barnstorming."

Wisconsin's 2012 Leaders in the Law

Inter alios, Dane County Circuit Court Judge Maryann Sumi.

Hear, hear. Most emphatically. And shame on the conservative Republican authors of the Wisconsin Supreme Court's June 14 unsigned "miscellaneous order" for their shabby treatment of Judge Sumi.

Also, SPD Ellen Berz. That can't hurt.

h/t Capper.

Huebsch v. Dane County: It could have been worse

A revelation:

There was some internal disagreement among the four people who wanted to [vacate Judge Sumi's decision]. Some of the people thought that the order should say that the bill that was the subject of this order had been published. My view was, 'No, it has not been published.' And in that, the three dissenters agreed with me. — Wisconsin Supreme Court Justice David Prosser

Which is interesting because it was my understanding that the near-unanimity of informed commentary — including, we now learn, Justice Prosser's — agreed that 2011 Wisconsin Act 10 had not been published, in the sense required by both the State constitution and the State statutes. There is no discussion of this question of publication in either the court's unsigned order or Justice Prosser's concurring opinion.

There is this, from Chief Justice Shirley Abrahamson's dissent:

¶111 The order and concurrence fail to examine carefully the arguments of the Secretary of State about the respective roles of the Secretary of State and the Legislative Reference Bureau in the publication of legislative acts, the printing of notice in the official state newspaper, and the effective date of a statute. See Wis. Stat. §§ 14.38(10), 35.095(3)(b), 991.11.

Indeed, between the two cases that the Huebsch majority claimed were supposed to have controlled Judge Sumi's deliberations — as opposed to their being controlled by, you know, the plain text of the Open Meetings Law — one, Goodland v. Zimmerman, was about an unpublished bill, and the other, La Follette v. Stitt, was about a published bill. Nevertheless, wrote Justice Prosser, "In my view, this case is governed by Stitt."* On the other hand, the court's unsigned order relied primarily on Goodland.

That's exactly the opposite of what an observer might expect, in terms of judicial precedent relied upon being "on point," as they say in the biz.

All of which, it seems to me, serves to support the dissenters' position that the case merited either further argument or at least further explication by the four conservative justices who made up the court's majority. I would like to have seen the reasoning of "some of the people" who thought 2011 Wisconsin Act 10 was published and not just printed. Because that would have taken some serious contortions beyond what the court did perform, which was to manufacture a unique form of judicial branch authority not bestowed by the State constitution.

And, while Justice Prosser claims that Assembly Leader Jeff Fitzgerald's public exhortation to the court to produce a decision in keeping with the Republican-controlled legislature's deadline was "separate" from the court's internal timetable, he sure got pretty excited when he learned that the WISGOP's requirements were in danger of not being satisfied.

One thing's for certain, this is an extremely politicized court.

* Then-Republican legislator David Prosser filed an amicus brief in Stitt.

Wisconsin Reporter occasionally good for a laugh

I missed this at the time, but it just popped up in a Google search for something else. This is from the Wisconsin Reporter, a collection of conservative Republican hacks pretending to be a "news service":

Obviously nobody violated state open meetings law in passing the collective bargaining bill ...

Interesting, because those alleged to have violated the State open meetings law admitted to it on the record, in court. And not only did they admit to violating the explicit letter of the statutes, they admitted the intent of the Wisconsin constitution's directive to the legislature to provide minimum public access to its affairs governed any picayune objections derived from medieval foreign common law relics. "Correct, absolutely correct," they confirmed in response to the presiding judge's view that the State constitution embodies "a vastly external expectation — [a] right — that people have under the Open Meetings Law."

Continues the Wisconsin "Reporter":

... and even if they did, the judge had no power to delay it.

Which is funny because you know what?

Not enjoining the bill would have been a wholesale betrayal of the State statutes. Wisconsin's Open Meetings Law explicitly grants the courts injunctive power pursuant to alleged violations of the Open Meetings Law but the injunctive power is not to be exercised unless the party who requests the injunction can show a reasonable likelihood of success on the merits of his case, which in this instance was that same allegation that legislative Republicans had violated the Open Meetings Law.

And in this instance it didn't as much matter whether the requesting party — the Dane County District Attorney — had affirmatively demonstrated its likelihood of succeeding because the legislative Republicans, by and through their Department of Justice counsel, themselves affirmed the District Attorney's meritoriousness in court.

And rather unequivocally — "Absolutely correct" — at that.

[Dane County Circuit Judge Maryann] Sumi ... [said] legislative Republicans violated opening meetings law.

Yes, because those legislative Republicans admitted it in her court.

What on Earth is so difficult to understand about this?

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.

Procedure is the true conservative's polestar

Here's Ed Fallone and Rick Esenberg talking about Petition of Walker.

Prof. Fallone is foursquare on the money: the Gableman court usurped procedure, invented jurisdiction, and unwarrantedly scapegoated a circuit court judge who followed both the spirit and the letter of the law (in fact the Open Meetings Law's spirit is clearly delineated in its letter).

There are also a couple of hilarious moments of vintage Esenberg, once where he perishes figuratively at the thought of anybody impugning the competence of any circuit court judge, himself having literally sneered on public radio at Judge Sumi not that long ago, and another where Esenberg, who once upon a time complained mightily that Judge Sumi failed to sufficiently explicate her temporary restraining order to Rick Esenberg, now merely sighs and handwaves away the Mike Gableman court's inability to properly elucidate its judical fiat. I'm not sure how to characterize Prof. Rick's comical disingenuousness, but whatever it is it lies somewhere between naked double standards and pure hypocrisy.

No wonder Esenberg's broken into Fox News. He makes the perfect fit.

And maybe we can help get Gableman his own show on Fox Business.

Forward [Slash]!

Your conservative Wisconsin Supreme Court

Wisconsin Manufacturers o' Jurisdiction

Just in case you're keeping score, of the four Wisconsin Supreme Court justices who determined that Dane County Circuit Judge Maryann Sumi exceeded her judicial authority,* we have one, Annette Ziegler, who copped to numerous ethical violations and was publicly reprimanded for same, another, Mike Gableman, who committed ethical violations and defied and fought the matter all the way back up to the Supreme Court (where his three conservative colleagues supported his "free speech" defense), and now yet another, David Prosser, who is facing what appear to be very serious allegations of having committed battery, and not just any battery, but battery to a sitting Supreme Court justice.

Mike Gableman's ethical violations (a.k.a. lying) were also in service of targeting a sitting Supreme Court justice and all three were sitting as State judges at the moments of their real and alleged performances.

Ladies and gentlemen, your heroically "conservative" Supreme Court. And this is the same court that is charged with ensuring the ethical behavior and education of Wisconsin's attorneys. Seems a bit ridiculous doesn't it.

* For the crime of following the Wisconsin legislature's black letter law. Scapegoating, is the word for what the conservatives did to Judge Sumi.

More adventures in original jurisdiction

Wow.

Perhaps the State Bar of Wisconsin's character and fitness evaluation should be administered periodically, starting with the Supreme Court.

"The actions of [Judge Maryann Sumi] exceeded the court's authority and must be vacated." — Prosser, J., concurring.

Riiight.

"We suspect that the court's problems will improve markedly after the heat of this election ... We recommend Prosser." — Milwaukee Journal-Sentinel editorial page, 04.02.11.

Okaaay.

Remarkable prescience, says blog commenter.

Imagine, though, if Prosser resigns and Walker appoints Mac Davis.

Yikes.

Shh! Charlie Sykes and the grown-ups are speaking

Actual "conversation" from Charlie Sykes's Sunday Insight, the weekend morning teevee show that Journal Communications, Inc. foists on unsuspecting Milwaukeeans as allegedly informed political commentary:

Charlie Sykes: What will they [the Wisconsin Supreme Court] do and when will they do it?

Brian Fraley: Because it is imperative, that Judge Sumi gets slapped down. Because she acted without legal precedent, she doesn't have jurisdiction, and it's important that it's determined throughout the State that Dane County judges can't subvert the will of the Wisconsin legislature to follow its own rules and to follow the law. [smug face]

Sykes: What will happen and when will it happen?

Fraley: Uh, it will happen soon and I think that she will be slapped down and I think the law will be enforced.

The vehemence and alacrity with which Brian "Critical Thinking" Fraley speaks of "slapping down" a State judge almost makes you want to petition the DA for an investigation into conspiracy to commit battery. You really have to see it and hear it to believe it. Or not, so stupid is it.

These people have a television show.*

Then Charlie Sykes turns to WPRI "senior fellow" Christian Schneider.

Sykes: What is going to happen?

Schneider: The Supreme Court's gonna vacate her, uh, her, uh, Judge Sumi's ruling and, uh, the law's gonna stand.

Then Sykes says the Supreme Court will vacate the circuit court first thing Monday morning, which was yesterday, and which it didn't, and which chances now are nil, thanks to Sykes's dear friends the WISGOP.

And obviously none of them can explain why the court will do what.

The end.

* Then again, so does this guy.

ASSGOP leader Jeff Fitzgerald blows it

Successful vote would moot the court case

Republicans: We will add collective bargaining to budget if court doesn't act by Tuesday — Wisconsin State Journal

If there was any lingering concern that the Wisconsin Supreme Court exercising its supervisory authority over Dane County Circuit Judge Maryann Sumi would be, at this point, itself an inappropriate judicial intervention into the affairs of the political branches, Assembly Speaker Jeff Fitzgerald just sealed the deal. There ain't no turning back now.

If the court "rules," it looks like just pure Republican politicians.

And isn't voting what Judge Sumi's been telling the Bros. Fitzgerald to do for months? Yes, yes it is. So why didn't the Bros. do it months ago?

They sure could have saved everybody a lot of grief, and expense.

Journal-Sentinel encouraged by Walker budget

Even as, the Journal Communications, Inc. daily organ admits, 'the burden of this budget will most likely fall heaviest on children, workers, poor women, and municipalities.' Meanwhile the Journal-Sentinel reports that "what will happen with the collective bargaining measure is still unknown." But yesterday Journal-Communications, Inc. marquee wing-nut Charlie Sykes told his ironic and non-ironic viewers — assuming Charlie Sykes even has any of the latter viewers — that the Wisconsin Supreme Court will exercise its supervisory power over Dane County Circuit Judge Maryann Sumi this morning.* Which would be great timing because Secretary of Capitol Building Maintenance Supervision Mike Huebsch says there will be thousands of protesters in Madison today.

But obviously Charlie Sykes has no idea why the high court would so act.

* The Supreme Court announced on Friday that it will release one opinion tomorrow, June 14, but it isn't "In re Petition of Scott Walker" either.

Scott Walker and the separation of WISGOP powers

Advertisement: Please visit the CAPITOL KAOS archives

[Wis. Stat. Sec.] 165.25(1) [The department of justice shall] appear for the state and prosecute or defend all actions and proceedings, civil or criminal, in the court of appeals and the supreme court, in which the state is interested or a party, and attend to and prosecute or defend all civil cases sent or remanded to any circuit court in which the state is a party.

165.25(1m) If requested by the governor or either house of the legislature, appear for and represent the state, any state department, agency, official, employee or agent, whether required to appear as a party or witness in any civil or criminal matter, and prosecute or defend in any court or before any officer, any cause or matter, civil or criminal, in which the state or the people of this state may be interested.

Here's another interesting and thus far overlooked tidbit from last Monday's marathon session of the Wisconsin Supreme Court, wherein Deputy Attorney General Kevin St. John concedes directly to the Chief Justice that the Department of Justice is appearing not on behalf of Secretary of Capitol Building Maintenance Mike Huebsch, but on the explicit direction of the governor, Scott Walker. And what Walker is complaining about is, ironically, a separation of powers violation.

During St. John's oral presentation, the Chief Justice is engaging the lawyer on some procedural posturings. Recall that while the hearings were underway in Dane County Circuit Judge Maryann Sumi's court in Ozanne v. Fitzgerald, Judge Sumi issued a temporary restraining order. A TRO is not a "final judgment" and the difference between a TRO and a final judgment is determinative of how Scott Fitzgerald and the other defendants may attack a judge's disposition, be it final or temporary.

In Wisconsin there exists a right to appeal final judgments, but if the defendant Republican legislators here wish to attack the TRO, they must be granted permission to do so by the court of appeals. Thus did the Department of Justice file a motion for permission to appeal a non-final order (the TRO) on March 21 with the District IV Court of Appeals.

The court of appeals declined to entertain that motion, but rather certified ("passed on," or "kicked upstairs," in the vernacular) the DOJ's petition to the Supreme Court. The Supreme Court announced nothing further with regard to that petition until June 3, when it issued an order consolidating it with the DOJ's petition for a supervisory writ, as in the interim between scheduling oral arguments on whether to entertain the supervisory writ, Judge Sumi did indeed issue a final judgment.

So the Chief Justice is wondering about from whence comes the DOJ's authority to bring the petition for a supervisory writ (a writ is a court order, and in this case the DOJ is seeking an order vacating Judge Sumi's disposition based on the Supreme Court's supervisory authority over the circuit courts). The petition for a supervisory writ was filed in the name of Mike Huebsch, but what the record transcribed below reveals is that the order came directly from Governor Walker himself, something Mr. St. John appears to be distinctly uncomfortable with admitting.

The exchange between the Chief Justice and the deputy AG, related to the foregoing issues of who gets to do what and when begins at 00:43:10 of Wisconsin Eye's video of the oral arguments and the CJ gets to the Walker's Point at 00:45:10. The ellipses are pauses, not edits.

CJA: Under what authority does the State bring this proceeding?

KSJ: The State brings this proceeding under [Wis. Stat. Sec. 165.25(1)(m) — see above].

CJA: 165 ... yes.

KSJ: 165.25, sub. 1m.

CJA: Point 25, one ...

KSJ: 1m.

CJA: What does that say, counsel?

KSJ: That provides, that says that the attorney general and I ... quote the statute [KSJ retrieves Volume 3 of the Wisconsin Statutes and Annotations] ...

CJA: 165 ... 25 ...

KSJ: It needs to be read in conjunction with sub. 1, but 1m provides that if requested by the governor or either house of the legislature ...

CJA: Okay.

KSJ: ... may ...

CJA: Did the governor make any request?

KSJ: Yes.

CJA: Is that on record?

KSJ: It's not part of the record for petition [for a supervisory writ]. The State appears in many actions at the request of the governor or on the legislature and wouldn't file that with the court. We'd be happy to do so if that were required.

CJA: Therefore, and represent the State. Okay, the court will take that under advisement. Is that what you're relying on, 'If requested by the governor, appear for and represent the State'?

KSJ: Mm hmm. In any matter in which the State or the people of this State may be interested. There's been a determination made ...

CJA: Oh wait, what about the sentence, "whether required to appear as a party or witness"? That clause.

KSJ: Mm hmm. In any ...

CJA: Well ...

KSJ: And prosecute or defend ...

CJA: Are you required to appear here as a party? Here?

KSJ: Uh, there's no requirement ...

CJA: Okay. So you're going on to, "and prosecute in any court," right?

KSJ: That's correct.

CJA: "In which the State or the people may be interested."

KSJ: That's correct.

CJA: Okay. This is one of the things that is ... and on page four of your Ozanne you rely on 165.25, but there you say only that the AG decides whether what's the best interest of the State so now you're relying on the governor, is that it?

KSJ: There is authority in this case from the governor, there is also authority in this court's precedent that says that the attorney general may appear before this court with or without the governor's approval to advance an interest of the State.

He goes on. But he's already admitted to the Chief Justice, who is more interested in the express language of the State statutes, that in this case what he's relying on is a request from the governor, Scott Walker.

So you have Republican Scott Walker, the chief executive branch officer, petitioning the Republican-controlled Supreme Court,* the top entity within the judicial branch, to in effect discipline a lower court because it ruled against his Republican pals and allies in the legislative branch. And what Walker is complaining about ultimately is a violation of the doctrine of constitutional separation of powers. That is one not-too-subtle irony.

Deputy AG St. John's pursed "mm hmms" indicate he was none too comfortable with the Chief Justice's line of inquiry. Witnesses at trial who answer "mm hmm" rather than "yes" are often admonished by the court for not speaking up clearly and affirmatively. I wonder why St. John was so reticent at providing this information, that the Department of Justice is acting on the direct order of Governor Scott Walker.

Because the named petitioner clearly has no idea what's going on.

Since Monday a slew of additional documents were filed with the State Supreme Court, but this space doesn't know whether Walker's directive to the DOJ is among them. It may well be quite an edifying read.

* Let's dispense with the "nonpartisan" façade for a moment. Everybody knows how many millions of dollars (and thousands of logically fallacious and unethical teevee ads) Republican-affiliated outfits have produced and spent to ensure and protect the current make-up of the court.

Shorter Scott Walker v. Dane County Cir. Ct.

From here:

[S]ix hours of oral argument before the Wisconsin Supreme Court has failed to identify any factual or legal finding of the circuit court that was plainly wrong. — Marquette law prof Ed Fallone

Exactly so. And indeed the closest any of the justices came to implying that Dane County Circuit Judge Maryann Sumi had done anything even approaching abusing her discretion came from Justice Annette Zeigler, who asserted elements of Judge Sumi's disposition were "unusual."

Well, it's an unusual case. The disposition is straightforward as can be.

Hardly grounds for the Supreme Court to exercise its supervisory authority over the trial court. Mr. Huebsch's petition* must be denied.

* It's actually Scott Walker's petition, as we shall see momentarily.