May 16, 2019

Republican Justices on Wisconsin Supreme Court Signal Support for Republicans' Lame-Duck Legislation

Legislature's Argument Leads to Absurd Results, Rendering Several Statutes Meaningless, Says Amicus Brief Filed by Wisconsin Democracy Campaign


Updated - Madison, Wisconsin — Republican-leaning Wisconsin Supreme Court justices signaled their support for Republican legislators who convened a lame-duck session last December to pass laws written to help Republicans, (Associated Press).

But the case is a legal super-fight with no clear outcome.

An interesting Wisconsin Democracy Campaign brief argues that the Republican-led Wisconsin Legislature's arguments made in support of the constitutionality of the Dec 2018 extraordinary session leads to absurd results, including rendering several state statutes meaningless.

The Supreme Court heard oral arguments May 15 in League of Women Voters of Wisconsin v. Tony Evers, Appeal Number 2019AP000559. [Long caption: League of Women Voters of Wisconsin, Disability Rights Wisconsin, Inc., Black Leaders Organizing for Communities, Guillermo Aceves, Michael J. Cain, John S. Greene and Michael Doyle, in his official capacity as Clerk of Green County, Plaintiffs-Respondents, v. Tony Evers, in his official capacity as Governor of the State of Wisconsin, Defendant-Respondent, Wisconsin Legislature, Intervening Defendant-Appellant.]

The lame-duck session was found to violate the Wisconsin Constitution by Circuit Court Judge Richard G. Niess in March 2019.

Though the December 2018 lame-duck session was unprecedented in state history, corporate media continue to characterize the Republican rightwingers as "conservative," in contravention of the Republican Party's radical departure from legislative norms that the lame-duck session exemplifies.

Republican-leaning justices on the Court will issue a decision on this intensely political case this Summer that some expect to favor Republicans over existing law and contemporary statutory interpretation.

Republican-leaning justices on the Court currently hold a four-to-three majority. This Republican majority will increase to five-to-two after Justice Shirley S. Abrahamson is replaced by Republican judge, Brian Hagedorn on July 31, 2019. Hagedorn is not expected to participate in this decision.

The current four Republican Party rightwing justices are Patience D. Roggensack, Annette Kingsland Ziegler, Rebecca Grassl Bradley, and Daniel Kelly.

The case is heavily briefed; and amicus briefs have been filed by dozens of attorneys, scholars, citizen groups' social justice, civil rights, industry and environmental groups.

The briefs offer arguments and points of law, bringing to the attention of the Court salient issues that may otherwise be overlooked.

Following are the link to the May 7, 2019 press release from the Wisconsin Democracy Campaign, and sections of the argument of the amicus brief text, written in support of the plaintiffs.

The Wisconsin Democracy Campaign's brief argues that the Republican-led Wisconsin Legislature's arguments made in support of the constitutionality of the Dec 2018 extraordinary session leads to absurd results, including rendering several state statutes meaningless.

Counsel for the Wisconsin Legislature is attorney Misha Tseytlin who is advancing a novel theory of a continuous session of the legislature. See May 7, 2019 Reply Brief. [League of Women Voters of Wisconsin v. Tony Evers Appeal Number 2019AP000559 Wisconsin Supreme Court]

The Introduction, Argument and Conclusion sections of the Campaign's brief are reproduced below.

INTRODUCTION 

The Wisconsin Constitution controls when the Wisconsin Legislature may meet.  With the exception of special sessions convened by the Governor, the  Legislature  has  authority  to  “meet”  only  at  “such  time  as  shall  be provided by law.”  Wis. Const. art. IV, § 11.  The circuit court correctly held that “provided by law” means “provided by duly-enacted statute.”  (R. 90 at 2.)     

The only statute implementing Article IV, Section 11 is Wis. Stat. § 13.02, titled “Regular session.”  The opening words of the statute are: “The legislature shall meet annually.”  Subsection (1) instructs as to when the Legislature  “shall  convene”  to  “organize  itself  for  the  conduct  of  its business.” Subsection (2) sets forth the time when the “regular session” shall commence  “in  each  year  unless  otherwise  provided  under  sub.  (3).”  Subsection  (3)  directs  the  joint  committee  on  legislative  organization  to “meet and develop a work schedule for the legislative session, which shall include at least one meeting in January of each year.”  Finally, subsection (4) provides that “[a]ny measures introduced in the regular annual session of the odd-numbered year which do not receive final action shall carry over to the regular annual session held in the even-numbered year.”  Nowhere does Wis. Stat. § 13.02 provide “by law” for the Legislature to meet in extraordinary session.

Before this Court is the question of whether the Legislature violated Article IV, Section 11 when it convened the December 2018 Extraordinary 3 Session.  (Br. at 1.1)  The circuit court agreed with the Plaintiffs-Appellees that  it  did.    (R.  90  at  7.)  The  Legislature  insists  that  there  is  but  one continuous biennial session of the Legislature.  (See, e.g.,Leg. Br. at 4.2)  The  Legislature’s  argument  cannot  be  true  because  it  would  negate constitutional provisions and contravene existing statutes, stripping them of any meaning.

ARGUMENT

I. THE  LEGISLATURE’S  INSISTENCE  THAT  IT  MEETS  IN “CONTINUOUS SESSION” LEADS TO ABSURD RESULTS THAT RENDER NUMEROUS STATUTES MEANINGLESS
.

The Legislature claims that it “meet[s] continuously throughout the biennial session period, with final adjournment occurring only immediately before the next biennial session begins.”  (Leg. Br. at 4.)  The Legislature further argues that “the 2017-18 Legislature unquestionably met in January 2017  and  did  not  stop  meeting  until  January  2019.”  (Id. at 18.)  The Legislature’s argument does not hold water.  The Legislature’s claim that it meets continuously is baseless and yields absurd results that render existing law meaningless. The circuit court correctly held:

____________________
1 “Br. at __.)” refers to pages in Plaintiffs-Appellees’ brief filed on April 30, 2019.

2 “Leg. Br. at __” refers to pages in the Legislature’s opening merits brief filed on April 10, 2019. 
The bottom line in this case is that the Legislature did not lawfully meet during its December 2018  “Extraordinary  Session,” which  therefore proceeded in violation of both Article IV, Section 11 of the Wisconsin Constitution and its sole implementing statute § 13.02, Stats. The former constrains the Legislature from meeting except in two circumstances:  (1) “at such time as shall be provided by law,” i.e., by statute, (2) “unless convened by the governor in special session.”

Neither circumstance occurred with the December 2018 “Extraordinary Session.”  For whatever reason, Governor Walker did not exercise his constitutional authority to call a special session.  And Section 13.02 does not set any “time” for an extraordinary session, as required by Article IV, Section 11.  Indeed, nothing in § 13.02, Stats., authorizes the Legislature to self-convene and meet, as it did last December, upon mere committee vote months after final adjournment of its 2018 regular session.
(R. 90 at 7.)

This  Court  has  a  responsibility  “to  ascertain  and  apply  the  plain meaning of the statutes as adopted by the legislature.” Kieninger v. Crown Equip.  Corp., 2019 WI 27, ¶14, 386 Wis. 2d 1, 924 N.W.2d 172.  Here, however, as demonstrated below, the plain meaning of the statutes cannot be applied   under   the   Legislature’s   “continuous   session”   erroneous interpretation of the Constitution or Wis. Stat. § 13.02.

A. If the Legislature’s Claim That It Meets in “Continuous Session” Were  Correct,  a  Lobbyist  Could  Never  Make  Campaign Contributions and a Legislator Could Never Accept Campaign Contributions from a Lobbyist.

Section 13.625(1m)(b) of the Wisconsin Statutes restricts lobbyists from making financial contributions to legislators until the Legislature is no longer in session.  Section 13.625(1m)(b) states, in relevant part:

A lobbyist may make a personal contribution to a partisan elective state official or candidate for partisan elective state office or to the candidate committee of the official or candidate between the first day authorized by law for the circulation of nomination papers as a candidate at a general election or special election and the day of the day of the general election or special elections, except that:

1. A contribution to a candidate for legislative office may be made during  that  period  only  if  the  legislature  has  concluded  its  final floorperiod, and is not in special or extraordinary session.
The  text  is  clear.  Lobbyists may not contribute  to  campaigns  for current legislators or to campaigns for candidates for Assembly or Senate while  the  Legislature  is  in  session.    Insteasignd,  a  lobbyist  may  make  a personal contribution to a legislator or a legislative candidate only after the Legislature  has  concluded  its  final  floorperiod  and  is  not  in  special  or extraordinary session.3  The Legislature’s claim that the Legislature is in continuous session would render Wis. Stat. § 13.625(1m)(b)1 meaningless.

If  it  were  true  that  the  Legislature  meets  in  continuous  session,  a lobbyist could never make a campaign contribution because there would never  be  a  period  during  which  the  Legislature  “has  concluded  its  final - continued -

3 The Legislature argues that the December 2018 Extraordinary Session was simply a non-prescheduled floorperiod occurring during the regular session.  (Leg. Br. at 35-37.)  

The Legislature further argues that statutory references to “extraordinary sessions” somehow render extraordinary sessions legitimate.  (Leg. Br. pp. 36-37.)  However, the  mere  mention  of  extraordinary  sessions  cannot,  and  do  not, authorize  the legislature to convene “by law” in extraordinary session as required by Article IV, Section 11. 
- floorperiod” since adjournment occurs “immediately before the next biennial session begins.”  (Leg. Br. at 4.)  It would follow that any contribution to a legislator or a candidate for legislative office ever made by a lobbyist is made in violation of Wis. Stat. § 13.625(1m)(b). The Legislature cannot have it both  ways.   It  cannot  meet  in  continuous  session  and  lawfully  accept lobbyists’  campaign  contributions. To  find  otherwise  would  render  the language of Wis. Stat. § 13.625(1m)(b) meaningless. 

The Legislature’s theory thus requires a finding that legislators and candidates for legislative  office  violate  the  law  each  time  they  accept campaign contributions from lobbyists.  On this basis, current members of the  Legislature  have  violated  the  law.4    If  true,  the  Legislature’s  own argument could lead to the mass indictment of legislators for violations of Wis. Stat. § 13.625(1m)(b).5  Not only does the Legislature’s assertion lead to absurd results, it renders Wis. Stat. § 13.625(1m)(b) meaningless. Statutes - continued -

4 See https://www.wisdc.org/index.php?option=com_wdcfinancedatabase&view= searchadvanced&active_search=1&ic_date_start=06%2F01%2F2018&ic_date_end=12%2F31%2F2019&ic_name=&cand_last_name=&ic_employer=&ic_interest=&ic_city=&ic_state=&ic_zip=&ic_amount_start=0&ic_amount_end=0&limit=100&filter_order=ic.contribution_date&filter_order_Dir=DESC&custom_page=1 (last visited on May 3, 2019.

5 These same legislators, however, would be immunized from court proceedings in perpetuum, see Section B., infra, yielding yet another absurd result. 
should  be  interpreted  in  such  a  way  that  no  provision  is rendered meaningless. See, e.g., Belding v. Demoulin, 2014 WI 8, ¶¶ 33-34, 352 Wis. 2d 359, 374, 843 N.W.2d 373.  See also Bostco LLC v. Milwaukee Metro. Sewerage Dist., 2013 WI 78, ¶ 217, 350 Wis. 2d 554, 664, 835 N.W.2d 160 (“We are required to read statutes so that no part is rendered meaningless or superfluous and so that the statute is not rendered unreasonable or absurd”).

B. If the Legislature were in “Continuous Session,” LegislatorsCould  Evade  the  Jurisdiction  of  the  Court  Until  Their Retirement

If the Legislature were in “continuous session,” the result would be that Wis. Stat. § 757.13 and Article IV, § 15 of the Constitution, which limit the courts’ jurisdiction over members of the Legislature while they are in session, would be rendered virtually meaningless.  Legislators could evade trial and avoid participation in court proceedings for decades, or perhaps even permanently.6  The wrongheadness of the Legislature’s contention that it “meets continuously” is demonstrated by its inability to coexist with Wis. Stat. § 757.13 and Article IV, § 15 of the Constitution.

6 To illustrate, a current member of the Legislature has served continuously for more than six decades and, under the Legislature’s theory, could avoid prosecution or court proceedings for the duration of that service. 
Under section 757.13, Stats., “[w]hen a witness, party or an attorney for any party to any action or proceeding in any court or any commission, is a member of the Wisconsin legislature, in session, that fact is sufficient cause for  the  adjournment  or  continuance  of  the  action  or  proceeding, and  the adjournment  or  continuance  shall  be  granted  without  the  imposition  of terms.” (Emphasis added.) If the Legislature is in continuous session, there would be “sufficient cause for the adjournment or continuance of [any] action or proceeding” to which the Legislator is a witness, party, or any attorney for a party and would render Wis. Stat. § 757.13 mere surplusage.  Certainly, it cannot  be  true  that  legislators  are  immune  from  participation  in  court proceedings for years, or even decades. No person—not even a member of the Legislature—is above the law. 

The language of Article IV, § 15 of the Wisconsin Constitution is similarly meaningless if the Legislature’s assertion that it is in “continuous session”  is  applied.    Article  IV,  Section  15  provides:    “Members  of  the legislature shall in all cases, except treason, felony and breach of the peace, be privileged from arrest; nor shall they be subject to any civil process, during the  session  of  the  legislature, nor  for  fifteen  days  next  before  the commencement  and  after  the  termination  of  each  session.”  (Emphasis added.)  But the Legislature contends that “final adjournment occur[s] only immediately before  the  next  biennial  session  begins.”  (Leg.  Br.  at  4.)  (Emphasis added.)  If the Legislature meets in continuous session, Article IV, Section 11 is rendered not only superfluous but nonsensical: there would be no be fifteen-day period before the commencement of a session or  after the termination of a session and, more importantly, there would be no period during which a legislator would be subject to process.

Accordingly, every single legislator would be immune to civil process for the length of their term of office.  Wis. Const. art. IV, § 15.  This is absurd. 

Additionally,  if  the  Legislature  sincerely  believed  that  it  meets  in continuous session, it would not have adopted 2017 Act 369 in the December 2018 Extraordinary Session, which requires service on various members and committees of the Legislature in certain judicial proceedings which, in turn, authorizes the Legislature’s intervention in those proceedings. See 2017 Wis. Act 369, §§ 7, 8, 98, 99, 101.  The Legislature received notice of the instant lawsuit by service of process (R.43, 44, 45), which led to its intervention. The Legislature’s position in this lawsuit, if credited, renders compliance with this new law impossible. It would truly be perverse to believe that the Legislature adopted this law with the very intention of imposing a service requirement that cannot be met.  Accordingly, the only logical conclusion is that the words the Legislature adopted as a part of 2017 Wis. Act 369, Section 7, 8, 98, 99, and 101 have meaning, and their meaning requires that the Legislature’s theory of a continuous session be rejected. 

The Legislature’s assertion of a “continuous session” in light of a contradictory law it adopted mere months ago defies common sense and, as a result, must fail.

C. If  a  Continuous  Session  Existed,  Legislators  Would  Be Entitled to Per Diem Reimbursement 365 Days of the Year.

Section 13.123 of the Wisconsin Statutes sets forth, inter alia, the extent to which legislators are entitled to a per diem allowance for food and lodging. The statute would not make sense if, as the Legislature contends in this Court, it meets perpetually. If the Legislature met in continuous session, legislators would be entitled to per diem reimbursement every day of every year; that would undermine the entire purpose of a per diem reimbursement because it would effectively become just a part of a legislator’s salary. In relevant part, Wis. Stat. § 13.123 provides:

IN-SESSION  EXPENSES.7  (a)  1.  Any  member  of  the  legislature  who  has signified ... the necessity of establishing a temporary residence at the state capital for the period of any regular or special legislative session shall be entitled to an allowance for expenses incurred for food and lodging ... but not including any Saturday or Sunday . . .                          * * *

(b) No allowance shall be paid under this subsection for any day during a recess of the legislature for 30 days or more unless so provided by joint resolution adopted by both houses of the legislature.  
(Emphases added.)

The details of the statute are significant.  First, if the Legislature were in continuous session, as it contends, it would follow that the legislators could claim per diem expenses for every day of the biennium.  Because the Legislature’s position is that “final adjournment occur[s] only immediately before the next biennial session begins” (Leg. Br. at 4), “IN-SESSION EXPENSES” would apply to every single day of the biennial session.  No legislator  claims per diem expenses  for  every  day  of  the  year,  because, simply, the Legislature is not in session every day of the year. Indeed, in the last year for which public records are available, only two legislators—out of  - continued -

7 Although  a  statutory  title  cannot  overrule  the  language  of  the law,  the  title  “is persuasive evidence of a statutory interpretation.” Mireles v. LIRC, 2000 WI 96, ¶60 n.13,  237  Wis.  2d  69,  613  N.W.2d  875  (citing  Pure  Milk  Prods.  Coop.  v.  Nat’l Farmers Org., 64 Wis. 2d 241, 253, 219 N.W.2d 564 (1974)); accord Scalia & Garner, supra, at 221 (“Titles and headings are permissible indicators of meaning.”).

This statutory section’s title of “IN-SESSION  EXPENSES” affirms  the intention that legislators be reimbursed for expenses while the Legislature is in session.  If, however, the Legislature is continuously in session, it follows that the term “expenses” need not be qualified by “in-session.” 
- 132—claimed per diem expenses for even half the calendar days in the year. See https://www.postcrescent.com/story/news/investigations/ 2018/02/06/ wisconsin-legislators-claim-over-1-3-million-allowances-but-work-fewerdays/ 307599002/ (last visited May 3, 2019).

Second,  the  Legislature’s  contention  renders  meaningless  other sections  of  Wis.  Stat.  §  13.123.  For example, Wis. Stat. § 13.123(1)(b) provides:  “No allowance shall be paid under this subsection for any day during a recess of the legislature for 30 days or more unless so provided by joint  resolution  adopted  by  both  houses  of  the  legislature.”    (Emphasis added.)  A recess  is,  by definition,  a  time  when  the Legislature is not in session.  There can be no recess—a time during which the Legislature does not meet—if the Legislature is in “continuous session.” 

By excluding Saturdays, Sundays, and periods of recess as times the Legislature is not in session, the statute clearly contradicts the Legislature’s claim that it is continuously in session.   

CONCLUSION

The  arguments  set  forth  above  illustrate that the position the Legislature has asserted in this litigation about “continuous sessions” is both contrary to existing law and would, if true, significantly retrench Wisconsin’s tradition of and commitment to government transparency. For these reasons, Wisconsin Democracy Campaign respectfully urges the Court to affirm the circuit court’s Decision and Order.

May 3, 2019
Respectfully submitted,
 /s/ Jeanne M. Armstrong
Jeanne M. Armstrong
State Bar No. 1021451
Christopher J. Dodge
State Bar No. 1011530
Attorneys for Wisconsin Democracy Campaign

---

Press Release for Wisconsin Democracy Campaign
May 7, 2019

Wisconsin Democracy Campaign Submits Amicus Brief in Lame-Duck Case 

On May 3, the Wisconsin Democracy Campaign submitted a motion for leave to file an amicus curiae brief to the Wisconsin Supreme Court in one of the lame-duck lawsuits. On May 6, the Wisconsin Supreme Court granted the motion and accepted the brief for filing.

Supporting the case brought by the League of Women Voters of Wisconsin, Disability Rights Wisconsin, and the Black Leaders Organizing for Communities, the brief by the Wisconsin Democracy Campaign punches several holes in one of the main arguments by the Republican leadership.

That argument contends that the Legislature meets “continuously through the biennial session,” and this contention is designed to rebut the charge that the lame-duck session was illegitimate.

But this defense—essentially, that the Legislature is always in session until the next session begins—is “absurd,” says the brief by the Wisconsin Democracy Campaign. “Acceptance of the Legislature’s argument would ensure that neither the Constitution nor the laws of Wisconsin could be properly construed and followed,” it states.

The brief points out that the logic of the Republicans’ argument would mean that “a lobbyist could never make campaign contributions and a legislator could never accept campaign contributions from a lobbyist.” The reason for this is simple: Current Wisconsin law allows lobbyists to make contributions only when the legislature is not in session. But since their argument is that the Legislature is always in session, they’ve got a big problem on their hands.

“The Legislature’s theory thus requires a finding that legislators and candidates for legislative office violate the law each time they accept campaign contributions from lobbyists,” the brief states. “If true, the Legislature’s own argument could lead to the mass indictment of legislators.”

The brief also notes that “if the Legislature were in ‘continuous session,’ Legislators could evade the jurisdiction of the court until their retirement.”

Current Wisconsin law says that a legislator can’t be party to a suit while the Legislature is in session so if the Legislature is always in session, there’s no way to take legal action against any legislator.

“Certainly, it cannot be true that legislators are immune from participation in court proceedings for years, or even decades,” the brief states. “No person – not even a member of the Legislature—is above the law.”

And here’s one for the Wisconsin taxpayer: If the Legislature serves in “continuous session,” then every legislator could put in for their “per diems” – their expense allowances -- every day for two years!

The law on “per diems,” incidentally, recognizes that the Legislature is not in “continuous session.” It states: “No allowance shall be paid under this subsection for any day during a recess of the Legislature for 30 days or more...” As the Wisconsin Democracy Campaign brief notes: “If the Legislature is in ‘continuous session,’ then how can there be a recess?”

The brief was filed by attorneys Jeanne Armstrong and Christopher Dodge of Fuhrman & Dodge.

Matt Rothschild, the executive director of the Wisconsin Democracy Campaign, hailed the work of Armstrong and Dodge. “Our lawyers did a terrific job in showing just how ludicrous the Republicans’ argument is,” Rothschild said.
#

May 15, 2019

First Amendment Liberties Scorned by Wisconsin Cop Who Helped Frame Innocent Man

Madison, Wisconsin — A corrupt ex-cop and a former Manitowoc County prosecutor filed a December 2018 lawsuit against the creators and distributors of the Emmy-winning Making a Murderer.

Manitowoc County Sheriff Dept Lt. Andrew Colborn (ret) and rightwing attorney and former Manitowoc County Asst DA, Michael C. Griesbach, filed this shockingly unschooled civil action charging defamation of  Colborn, in the documentary Making a Murderer, (Colborn v. Netflix Inc et al, Case # 1:19-cv-00484, Mal Contends, Dec 2018 Summons and Complaint, March 4, 2019 Amended Complaint).

Making a Murderer focused worldwide attention on the corrupt police-prosecutor-prison complex in east-central Wisconsin, and an equally corrupt Wisconsin Dept of Justice, a matter of grave public interest.

The case was removed to federal court, United States District Court, Eastern District of Wisconsin, on April 4, (WBAY, Appleton Post-Crescent). The federal civil case is: Colborn v. Netflix Inc (1:19-cv-00484).

The rightwing Federalist Society-linked presiding Judge William C. Griesbach, brother of attorney Michael C. Griesbach, recused on April 5.

Colborn's lawsuit is a clumsy attempt to cover up a police frame-up of the wrongfully convicted Steven Avery, featured in Making a Murderer.

The civil litigation is also a window into how corrupt Wisconsin law enforcement views the world — a realm of malignant narcissism in which police action is inherently righteous to the point of monarchical, and liberties and human rights are seen as obstacles to overcome in a society in which citizens are ruled by the caprice of police and political-legal allies.

Recent motions by Netflix, Inc and others to dismiss Colborn's action are almost certain to prevail in federal court, (Mueller, Appleton Post-Crescent, Mal Contends).

The retired public official Colborn's complaint written by attorney Griesbach, (and a March 4, 2019 amended complaint), assert Colborn is not a public official under defamation law; nor a "public figure" or "limited purpose public figure," (p. 7. March 4, 2019 Amended Complaint).

Such a status might offer Colborn a measure of protection (though limited) from what otherwise is First Amendment-protected speech, and privileged speech of Making a Murderer.

Writes Griesbach:

Statement of Facts

1. Plaintiff, Andrew L. Colborn, is a former Manitowoc County Sheriff's Office police officer. Plaintiff retired in March of 2018 after serving twenty-six years in public service. At no time during his employment at the Manitowoc County Sheriff's Office (hereafter, MTSO) did plaintiff serve as public official as that term is defined in defamation law.

Preposterous.

Madison, Wisconsin attorney James A. Friedman, representing Netflix, Inc and others demolishes Colborn's implausible characterization of facts.

Writes Friedman:

Colborn is public offical

I. Colborn is a public official.Whether a defamation plaintiff is a public official is a threshold question of law for the court,  Rosenblatt v. Baer, 383 U.S. 75, 88 & n.15 (1966), and presents an issue of federal constitutional law, not state law, Meiners v. Moriarity , 563 F.2d 343, 352 (7th Cir. 1977).

The Supreme Court has recognized, on multiple occasions, that police and other law enforcement officers are quintessentially “public officials” for these purposes. In Sullivan itself, the plaintiff was the official in charge of law enforcement in Montgomery, Alabama. Sullivan, 376 U.S. at 256. Four years after Sullivan, in St. Amant v. Thompson, 390 U.S. at 730 & n.2, the Court held that a deputy sheriff had failed to prove the actual malice necessary for him to prevail in a defamation action. And, three years after that, the Court similarly concluded that a Chicago police detective had failed to demonstrate the requisite actual malice. See Time, Inc. v. Pape , 401 U.S. 279, 284, 292 (1971). In so holding, the Court embraced the Seventh Circuit’s prior decision that such a plaintiff is a public official as a matter of law. See Pape v. Time, Inc. , 354 F.2d 558, 560 (7th Cir. 1965); see also Pape v. Time, Inc. , 419 F.2d 980, 981 (7th Cir. 1969).

Not surprisingly, courts throughout the country have since followed the Supreme Court’s lead and overwhelmingly held that law enforcement officers, from patrol officers to police chiefs, are public officials within the meaning of Sullivan and its progeny. The Wisconsin Court of Appeals, for example, has recognized that a police chief is a public official because he is, by definition, “a local government employee charged with protecting the public interest in law enforcement.” Pronger v. O’Dell, 127 Wis. 2d 292, 295, 379 N.W.2d 330, 331-32 (Ct. App. 1985);  see also Miller v. Minority Bhd. of Fire  Prot.  58 Wis. 2d 589, 599-601, 463 N.W.2d 690, 694-95 (Ct. App. 1990) (concluding that fire department captain is a public official and favorably citing other courts’ holdings that sheriff’s deputies, police officers and state troopers also qualify as public officials). Similarly, federal appellate courts throughout the country have not hesitated to apply the public official designation to those working in law enforcement. See, e.g. , McGunigle v. City of Quincy, 835 F.3d 192, 206 (1st Cir. 2016) (police officer);  Revell v.  Hoffman , 309 F.3d 1228, 1232-33 (10th Cir. 2002) (former Associate Deputy Director of FBI); Rattray v. City of Nat’l City , 36 F.3d 1480, 1486 (9th Cir. 1994) (police officer), modified and superseded on denial of rehearing on other grounds , 51 F.3d 793 (9th Cir. 1994); Zerangue v. TSP Newspapers, Inc., 814 F.2d 1066, 1069-70 (5th Cir. 1987) (chief deputy sheriff and chief of detectives in sheriff’s office); Coughlin v. Westinghouse  Broad. & Cable, Inc. , 780 F.2d 340, 342 (3d Cir. 1985) (per curiam) (police officer); Meiners, 563 F.2d at 352 (federal narcotics agent).

More specifically, courts have regularly held that sheriff’s deputies—even those with fewer responsibilities than Colborn had as a sergeant, shift commander, and patrol supervisor—are public officials within the meaning of Sullivan. See, e.g., Zerangue , 814 F.2d at 1069-70; Karr v. Townsend, 606 F. Supp. 1121, 1131 (W.D. Ark. 1985) (sheriff’s deputy is public official); Hirman v. Rogers, 257 N.W.2d 563, 566 (Minn. 1977) (same); Pardo v. Simons , 148 S.W.3d 181, 189 (Tex. App. 2004) (same); Murray v. Lineberry, 69 S.W.3d 560, 563 (Tenn. Ct. App. 2001) (same). (5)
These holdings make perfect sense given the First Amendment’s overarching commitment to promoting “uninhibited, robust, and wide-open” debate about those responsible for performing important governmental functions: [T]he ‘public official’ designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs. . . . Where a position in government has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance of all government employees, . . . the  New York Times  [actual] malice standards apply. Rosenblatt, 383 U.S. at 85-86. Law enforcement officers such as Colborn comfortably meet this standard. They are, as multiple decisions note, members of “quasi-military” -

For additional state court precedent, see Turner v. Devlin , 848 P.2d 286, 290 & n.8 (Ariz. 1993) (police officer); Gomes v. Fried, 136 Cal. App. 3d 924, 933-34 (1982) (police officer);  Moriarty v. Lippe, 294 A.2d 330-32 (Conn. 1972) (patrol officer); Jackson v. Filliben , 281 A.2d 604, 605 (Del. 1971) (police sergeant); Smith v. Russell, 456 So. 2d 462, 463-64 (Fla. 1984) (police officer);  Rawlins v. Hutchinson Publ’g Co., 543 P.2d 988, 992 (Kan. 1975) (police officer); Roche v. Egan, 433 A.2d 757, 762 (Me. 1981) (all law enforcement personnel, including police detective); Rotkiewicz v. Sadowsky, 730 N.E.2d 282, 288 (Mass. 2000) (police officer); Malerba v. Newsday, Inc., 406 N.Y.S.2d 552, 554 (App. Div. 1978) (patrolman); Colombo v. Times-Argus Ass'n, 380 A.2d 80, 83 (Vt. 1977) (police officer); Starr v. Beckley Newspapers Corp., 201 S.E.2d 911, 913 (W. Va. 1974) (police sergeant).

- organizations who carry guns and who possess the authority not only to arrest but also, in some circumstances, to take human life. See, e.g., Pool v. VanRheen, 297 F.3d 899, 909 (9th Cir. 2002) (referring to sheriff’s department as “quasi-military entity”); Kokkinis v.  Ivkovich , 185 F.3d 840, 846 (7th Cir. 1999) (same, as to police department); Eiland v. City of Montgomery, 797 F.2d 953, 960 (11th Cir. 1986) (same); Easley v. Kirmsee, 235 F. Supp. 2d 945, 957 (E.D. Wis. 2002) (finding that sheriff’s deputies receive training “on all aspects of a law enforcement officer’s duties and responsibilities, including the use of force, both deadly and non-deadly [and] the use of firearms”), aff’d on other  grounds , 382 F.3d 693 (7th Cir. 2004); Caraballo v. Cty. of Sawyer, 2013 WI App 1, ¶ 4, 345 Wis. 2d 398, 824 N.W.2d 929 (table) (Wis. Ct. App. 2012) (per curiam) (unpublished) (sheriff’s deputies’ discretionary duties include shackling prisoners, as well as enforcing compliance with commands by use of physical force and chemical agents);  see also Wis. Stat. § 59.27 (enumerating duties of Sheriffs and their deputies).

Given Colborn’s responsibilities and privileges as a sheriff’s deputy, sergeant and shift commander—which were apparently significant enough to qualify him to be the Republican nominee in the 2006 election for Manitowoc County Sheriff (6) —there can be no doubt either that he had “substantial responsibility for or control over the conduct of governmental affairs,” or that the public has a compelling interest in scrutinizing his -

6 Although it is not necessary for the Court to reach the issue given Colborn’s status as a public official, he is also obliged to plead and prove actual malice because he is a “public figure.” See Gertz, 418 U.S. at 335. Should this case proceed to discovery, all Defendants reserve their right to argue via a motion for summary judgment that Colborn’s 2006 campaign for Sheriff, his statements to the press about the Avery verdict, and his role in the investigation and prosecution of Halbach’s murder render him a limited purpose public figure.

- performance of his official duties. As the Wisconsin Court of Appeals has explained: “[T]here is no more awesome power exercised by government than that of the police. The  police have literally the power of life and death over citizens they are to protect . . . .” State ex rel. Journal/Sentinel, Inc. v. Arreola, 207 Wis. 2d 496, 516, 558 N.W.2d 670, 677 (Ct. App. 1996). As a result, “the public has a particularly strong interest in being informed about its . . . law enforcement officers.”  Hutchins v. Clarke , 661 F.3d 947, 955 (7th Cir. 2011);  see also Gray v. Udevitz, 656 F.2d 588, 591 (10th Cir. 1981) (police officer is public official for defamation purposes because “[m]isuse of his authority can result in significant deprivation of constitutional rights and personal freedoms, not to mention bodily injury and financial loss”). (7)

7  For these same reasons, in the context of disputes over open records requests, Wisconsin courts have repeatedly emphasized the need for the public to monitor the conduct of law enforcement officers. See, e.g. , Kroeplin v. Wis.  Dep’t of Nat. Res., 297 Wis. 2d 254, 287, 725 N.W.2d 286, 302 (Wis. Ct. App. 2006) (“The public interest in being informed both of the potential misconduct by law enforcement officers and of the extent to which such misconduct was properly investigated is particularly compelling . . . .”);  Hempel v. City of Baraboo, 2003 WI App 254, ¶ 18, 268 Wis. 2d 534, 548, 674 N.W.2d 38, 45 (“Police officers must necessarily expect close public scrutiny.”), aff’d on other grounds , 284 Wis. 2d 162, 699 N.W.2d 551 (2005).

Why would Colborn argue through his attorneys demonstrably false, vacuous and conclusory pleadings that this former law enforcement officer and two-time political candidate for elective office is not a public official, or public figure under defamation law?

It's the way things are in Manitowoc and Calumet counties in east-central Wisconsin law enforcement. The police can say and do virtually anything and corrupt officials in the Wisconsin Dept of Justice will provide cover, running legal and political interference. See #CorruptiwocCounty. So, a less-than-sophisticated understanding of the liberties of the citizenry is to be expected.
---

Another revealing aspect in Colborn's litigation is noted in a humorous footnote, #8 (p. 19), in Netflix' May 9, 2019 motion to dismiss.

The Netlifx motion takes note of Colborn's argument in his amended complaint that Netflix and the filmmakers did not "admit" the factuality of, and include in Making a Murderer (2015) the arguments and "[t]horough, careful, and objective analysis by some members of the public and a few journalists [that] revealed that the series had badly distorted the facts," as advanced in a 2016 book authored by attorney Michael Griesbach, (the aforementioned author of the original 2018 complaint against Netflix and others), in Indefensable: The Missing Truth About Steven Avery, Teresa Halbach, and Making A Murderer (Kensington Publ’g Corp. 2016).

Reads the Netflix motion's footnote 8:

8 The Amended Complaint also alleges that all Defendants acted with actual malice because they have refused to “admit[] their distortions and omissions of fact” in the wake of “[t]horough, careful, and objective analysis by some members of the public and a few journalists [that] revealed that the series had badly distorted the facts.” Dkt. 1-2 ¶ 55. Here, the Amended Complaint makes a not-so-veiled reference to a book criticizing MaM published by Colborn’s counsel that mirrors many of the allegations in the Amended Complaint. See generally Michael Griesbach, INDEFENSIBLE: THE MISSING TRUTH ABOUT STEVEN AVERY,  TERESA HALBACH, AND MAKING  A  MURDERER  (Kensington Publ’g Corp. 2016). This detour is, however, irrelevant to the issue of actual malice, which is measured at the time of publication, not afterwards. Pippen, 734 F.3d at 614. 

Netflix and others' Memorandum in support of its motion to dismiss notes deficiencies in the law enforcement officer Colborn's amended defamation complaint on First Amendment grounds; and on the failure to meet the low threshold of stating a claim upon which relief can be granted, citing Federal Rules of Civil Procedure, 12(b)(6).

Another motion notes improper service and apparent deceit committed by agents of the plaintiff, Colborn.

May 10, 2019

Netflix Makes Motion to Dismiss Defamation Suit Filed by Retired Manitowoc County Cop — Andrew Colborn

First Amendment and Failed Legal Claim Expected to Drop Wisconsin Cop's Effort to Silence Critics of Police Frame-up


Madison, Wisconsin — The distributor of the Emmy-winning Making a Murderer documentary series, Netflix, Inc, is asking a federal court to dismiss a defamation lawsuit filed by a retired lieutenant of the Manitowoc County Sheriff's Office, (ANDREW L. COLBORN, Plaintiff, vs. Civil No.: 19-CV-484 NETFLIX, INC.; CHROME MEDIA LLC, F/K/A SYNTHESIS FILMS, LLC; LAURA RICCIARDI; AND MOIRA DEMOS, Defendants. MEMORANDUM IN SUPPORT OF MOTION TO DISMISS BY NETFLIX, INC) (May 9, 2019).

Lt. Andrew Colborn (ret) filed an assault-defamation action against Netflix, Inc and others on Dec 17, 2018.

Netflix and others' Memorandum in support of its motion to dismiss notes deficiencies in the law enforcement officer Colborn's amended defamation complaint on First Amendment grounds; and on the failure to meet the low threshold of stating a claim upon which relief can be granted, citing Federal Rules of Civil Procedure, 12(b)(6)

Reads the motion:

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS BY NETFLIX, INC

Andrew L. Colborn, a sworn law enforcement officer, brings this lawsuit over a documentary television series that uses the unique experiences of Steven Avery, a DNA exoneree charged with murder, to provide a window into the American criminal justice system. Taking viewers from Avery’s 1985 wrongful conviction for rape through his 2005 arrest and prosecution for murder, the series explores whether twenty years of scientific advances and legislative reforms have resulted in a more reliable system. As is obvious from even this brief summary, as well as the nationwide, contemporaneous media coverage of Avery’s prosecution and trial, the series—titled  Making a Murderer— explores issues of the utmost public interest and concern.

Given the subject matter of  Making a Murderer and Colborn’s status as a public official, to prevail in this defamation case, he must plead and prove that Defendants  published the documentary series with “actual malice”—i.e., either knowing it was false or despite a “high degree of awareness” of its “probable falsity.” Garrison v. Louisiana , 379 U.S. 64, 74 (1964). Even if Colborn were not a public official, he would still be obliged to plead and prove that Defendants negligently disseminated a material falsehood about him. Gertz v. Robert Welch, Inc. , 418 U.S. 323, 352 (1974).

With regard to defendant Netflix, Inc., however, Colborn’s Amended Complaint comes nowhere close to satisfying federal pleading standards. Instead, he simply lumps Netflix together with co-defendants Chrome Media, LLC—the concededly independent production company that created Making a Murderer —and its filmmakers, Laura Ricciardi and Moira Demos, and makes vague, conclusory allegations (on “information and belief,” no less) about “defendants” collectively.

Setting aside all the other problems with Colborn’s lawsuit—most fundamentally, that Making a Murderer contains no false statements of fact about him—he has not plausibly alleged that Netflix distributed the documentary series negligently, much less with the requisite actual malice. All of his claims against Netflix should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6).
1 See, e.g., Monica Davey, Freed by DNA, Now Charged in New Crime, NYTimes.com (Nov. 23, 2005), https://www.nytimes.com/2005/11/23/us/freed-by-dna-now-charged-in-new-crime.html?searchResultPosition=1.

Correction: Motion to dismiss includes remaining co-defendants.


The effort by Colborn and former Manitowoc County prosecutor Michael C. Griesbach to advance a legal action based upon failing arguments is consistent with the institutional disregard for life and liberty in the corrupt Manitowoc County Sheriff's Office and Calumet County Sheriff's Office and respective county district attorneys' offices.

Advocates for Steven Avery, who was framed for murder in 2005, are watching the developments of what they believe is an increasingly desperate Wisconsin law enforcement effort to protect a wrongful conviction.

Colborn v. Netflix Inc et al, Case # 1:19-cv-00484, was removed from Manitowoc County circuit court to federal court on April 10, 2019. 

The case is being heard by Judge Pamela Pepper, United States District Judge of the United States District Court for the Eastern District of Wisconsin.

The text of the Motion to Dismiss is reproduced below:

May 8, 2019

Wisconsin Attorney General Joshua Kaul Is Promoting a 'Mockery of Justice' in Making a Murderer Case

Above, attorney Kathleen Zellner is shown walking with
innocent people for whom she and her legal team have won
exoneration and freedom. The world-renown attorney
faces perhaps her biggest challenge yet against corrupt
Wisconsin law enforcement, and a state judiciary hostile
to civil rights and stacked with corrupt jurists biased in favor
of police. Zellner has won a worldwide following of
admirers
who object to the imprisonment of people known
to be innocent.

Innocent awaits ruling from corrupt county circuit court


Madison, Wisconsin — A wrongfully convicted man, Steven Avery, is awaiting a state circuit court ruling on his motion for an evidentiary hearing, and a new trial.

The Feb 25, 2019 appellate court order mandating "any proceedings necessary to address [Avery's] claims" points to a hearing after briefing at the circuit court to which the case had been sent back.

No such proceedings have been ordered to this date.
 ---
Steven Avery's story is abject demonstration of the determination of law enforcement to work against innocents, and the incapacity of Wisconsin society — corporate media, police, courts, bureaucracies, elected representatives and many citizens — to even acknowledge the perverse efforts of the Wisconsin Dept of Justice (DoJ) now led by Attorney General Joshua Kaul (D), to keep innocents in prison.

Kaul is working to shield criminal acts committed by Wisconsin law enforcement by blocking examination of evidence, opposing all court hearings, and promoting "finality in criminal litigation" so that police and prosecutorial misconduct are protected, and the innocent remain imprisoned, (p.4. State's Response to Defendant's Motion for New Trial Based on Alleged Youngblood Violation, March 29, 2019).

Steven Avery is featured in the Emmy-winning documentary, Making a Murderer.

Kaul has the discretion to accede to Avery's requests for transparency and open examination of evidence and state misconduct.

The case is now before Sheboygan County Judge Angela W. Sutkiewicz who is expected to issue a ruling within weeks on Avery's legal motions

Sutkiewicz is a corrupt judge who does the work of police and prosecutors against people and the cause of truth.

Advocates for truth in the Avery case expect their efforts to be won in state appellate court after an anticipated adverse ruling by Sutkiewicz.

The post-conviction ligation is State v. Steven A. Avery, Appeal Number 2017AP002288, now before Manitowoc County Circuit Court, substituted by Sutkiewicz.

State of Wisconsin Criminality 

In its late-March legal filing, the DoJ argues only procedural objections to Avery's charges of bad-faith state evidence destruction, deceit, concealment and deception, all of which present Due Process questions, (Steven Avery legal filings; #Work with KZ, WBAY, WLUK).

Continuing its strategy of avoiding mention of charged state criminality and lawlessness in litigation, the State's conduct is striking in its avoidance of the merits of Avery's charges that the Calumet County Sheriff's Office secretly transferred evidence, the remains of a murder victim, Teresa Halbach, to private custody in 2011, in violation of state statutes that govern preservation of physical evidence collected; among other allegations.

Commenting on the State's March 29, 2019 legal filing in Newsweek Magazine, Avery's post-conviction attorney, Kathleen Zellner, said:

Wisconsin Dept of Justice is painting itself into a corner
in its effort to keep innocent men in prison. "The State
is thumbing its nose at the appellate court once again,"
wrongful conviction attorney Kathleen Zellner told Newsweek
on April 2. "That court specifically ordered that the merits of the
alleged bone destruction be addressed. Rather than follow the
court's directive, the State has constructed a convoluted
procedural argument that defies logic or precedent."
'Of course the State cannot address the merits of Avery's claim, because it is blatantly guilty of evidence destruction. Its charade continues without the slightest inclination to discover the truth. Significantly, one of the culprits in the whole sad scenario authored the State's Response. Unfortunately, the citizens of Wisconsin are the recipients of this mockery of justice.'

Zellner refers to the DoJ post-conviction litigation team and Thomas Fallon, who helped oversee the decision to return the alleged human bones to the Halbach family. Fallon wrote the state’s response, and is defending his own misconduct.

The post-conviction ligation is State v. Steven A. Avery, (Appeal Number 2017AP002288), now before Manitowoc County Circuit Court.

Before Zellner won her motion for a remand (sending back) the case to Circuit Court, Zellner and other advocates for the innocent Avery argued in her Feb. 1 legal filing:

May 5, 2019

Speaker Pelosi Wants Appeasement Policy Towards Trump — Says Feared Trump Action after 2020 Election Should Decide Democratic Nominee

House Speaker Nancy Pelosi's
comments that her fears of Trump
refusing to step aside after a guessed
2020 defeat suggest a policy of
appeasement.

Pelosi Calls for Appeasement Policy to Convince Trump to Leave Office in Event of 2020 Defeat


Updated - House Speaker Nancy Pelosi expressed concern Donald Trump would refuse to vacate the presidency after the 2020 general elections.

Pelosi urged Americans to elect the Democratic Party nominee in accordance with her corporatist policy, an effort to convince Trump to voluntarily leave office after a speculated defeat, and to deter a challenge by Trump against the legitimacy of election results.

Pelosi made her comments in an interview with the New York Times, (Thrush).

Writes Glenn Thrush:

In recent weeks Ms. Pelosi has told associates that she does not automatically trust the president to respect the results of any election short of an overwhelming defeat. That view, fed by Mr. Trump’s repeated and unsubstantiated claims of Democratic voter fraud, is one of the reasons she says it is imperative not to play into the president’s hands[.]
Mollifying Trump is policy of Nancy Pelosi.
Pelosi said she can inoculate the country against Trump engaging in an act of defiance against adverse election results by electing her preferred candidates for the nomination.

Speaker Nancy Pelosi does not believe President Trump can be removed through impeachment — the only way to do it, she said this week, is to defeat him in 2020 by a margin so 'big' he cannot challenge the legitimacy of a Democratic victory.

That is something she worries about.

'We have to inoculate against that, we have to be prepared for that,' Ms. Pelosi said during an interview at the Capitol on Wednesday as she discussed her concern that Mr. Trump would not give up power voluntarily if he lost re-election by a slim margin next year.

Sitting in her office with its panoramic view of the National Mall, Ms. Pelosi — the de facto head of the Democratic Party until a presidential nominee is selected in 2020 — offered Democrats her 'coldblooded' plan for decisively ridding themselves of Mr. Trump: Do not get dragged into a protracted impeachment bid that will ultimately get crushed in the Republican-controlled Senate, and do not risk alienating the moderate voters who flocked to the party in 2018 by drifting too far to the left.

'Own the center left, own the mainstream,' Ms. Pelosi, 79, said.
Only the "big" margin of victory that Pelosi feels her preferred candidates would achieve can persuade Trump to leave the presidency.

In the Times interview, Pelosi also derided popular progressive policy initiatives that she opposes, such as Medicare for all and the Green New Deal, as "exuberances" — to be avoided because Pelosi has made her electoral assessment that the Speaker believes will result in a "big" electoral win in 2020 that would deter Trump.

It's unclear if Pelosi realizes she is advocating that fear of an unconstitutional, illegal and unprecedented action by Trump after the 2020 election should dictate major policy positions, including whom voters elect as the Democratic Party presidential nominee.

Nowhere in the Times piece is there expressed sentiment by Nancy Pelosi that the legitimate winner of the 2020 general election — regardless of who this is or what policy she or he advocates —   should assume the presidency, without respect to what Donald Trump believes or says.

This is Pelosi's first open call for an appeasement policy towards Trump.

Writes Thrush:

Few people outside Ms. Pelosi’s inner circle were aware of how worried she was that Mr. Trump would try to stop the opposition party from taking control of the House unless the Democrats’ victory was emphatic enough to be indisputable.

'If we win by four seats, by a thousand votes each, he’s not going to respect the election,' said Ms. Pelosi, recalling her thinking in the run-up to the 2018 elections.

The Times piece did not include the word, "appeasement," nor a quote from any source criticizing Pelosi's comments.

Ahistorical, unschooled and unwise, Nancy Pelosi appears inclined to damage freedoms and popular policy in an effort to mollify a fascist president.

It's not only Donald Trump who is torpedoing our most cherished democratic processes.

The 2020 general elections are not about seeking Trump's approval, consent or respect. Nancy Pelosi needs to understand this.