Showing posts with label corruption Wisconsin Supreme Court. Show all posts
Showing posts with label corruption Wisconsin Supreme Court. Show all posts

Feb 21, 2013

Roggensack's Obstruction of Assault against Colleague Strikes Chord

Cover-up of attack continues
Justice Pat Roggensack's run for re-election came up in a topic among several women meeting for breakfast near Madison recently.

The women—professional, educated, and liberal in political sensibility but not political junkies—were most reportedly offended not by Roggensack's embrace of the Republican Party's agenda and the GOP justices' decimation of Wisconsin's Open Meetings Law. Unfortunate, but true; they didn't really know much about GOP corruption.

What offended them was Roggensack's obstruction of holding David Prosser accountable for actually choking a fellow justice on June 13, 2011.

The choking incident was first reported by Bill Lueders, writing for the Wisconsin Center for Investigative Journalism on June 25, 2011.

Holding Prosser accountable for physically attacking a woman in the workplace appears to be a no-brainer.

But Roggensack, along with Prosser's other two GOP colleagues, decided to block the recommendation of willful violations of ethics by the Wisconsin Judicial Commission, since packed with GOP partisans by Scott Walker.

Prosser attacks a female colleague and Roggensack covers up the crime by a sitting Wisconsin Supreme Court justice.

One hopes this would be seen by voters as an unforgiveable betrayal by Roggensack and her other GOP cohorts.

Feb 20, 2013

Rule of Law v. GOP Corruption

Rule of law v. corruption. An easy choice for the 20 (maybe 30ish)-some percent of the electorate who will vote on April 2.

Marquette University law professor Ed Fallone faces Wisconsin state Supreme Court Justice Patience Roggensack in the April 2 general election.

This is a race where the sitting Justice Roggensack is a corrupt partisan, and should be described as such by Prof. Fallone, a thoughtful academic and jurist.

Roggensack already has rightwing money from Wisconsin Club for Growth hitting the air waves, and state and county GOP officials are kicking in.

Fallone will be outspent by Roggensack.

Fallone should tell the truth in this race—if for no other reason than truth in politics is needed in democracies—that Roggensack is a corrupt partisan.

Fact is Fallone cannot afford not to tell this truth, so he ought to sing it out loudly.

Wisconsin needs Fallone to tell the truth; because voters won't get the truth on this race from broadcast media, Gannett Co. Inc.'s 13 newspapers or the Milwaukee Journal-Sentinel and Wisconsin State Journal.

As we have noted here before, Fallone should also educate the public about what the state's top appellate court does. Few voters know.

And he needs to make fidelity to "the absence of bias or prejudice in favor of, or against, particular parties, or classes of parties, as well as maintaining an open mind in considering issues that may come before the judge," the basis upon which Fallone is running for Supreme Court justice, as the Wisconsin's Code of Judicial Conduct mandates.

The Republican Party wants the Wisconsin Supreme Court as a partisan instrument, packed with partisans as Scott Walker has accomplished with the Wisconsin Judicial Commission that had the audacity to police a Republican justice's ethics.

Rule of law v. corruption. An easy choice for the 20 (maybe 30ish)-some percent of the electorate who will vote on April 2.

Jan 14, 2013

Wisconsin Supreme Court Denies GOP Move to Bypass Courts on Voter ID-Obstruction Case

The Wisconsin Supreme Court has again refused to bypass a court of appeals ruling today holding the Wisconsin GOP voter ID law unconstitutional on its face.

Some four weeks before the February primary election of GOP Supreme Court justice, Patience Drake Roggensack, naked acts of political corruption appear unwise.

The Court's decision is a sign that when the voter ID cases do reach the Wisconsin supreme court, the four GOP justices will not rule against the Wisconsin Constitution and overturn the two permanent injunctions of the lower courts because this action would be too blatant a display of corruption—a view that is conventional wisdom among Wisconsin jurists contacted the past months who are not involved in the cases.

The high court similarly refused to take up the GOP voter ID cases in April 2012.

The court also refused today to consolidate the two state cases that are now before two different Wisconsin appellate courts.

Two state appellate courts have held the GOP voter ID law is permanently enjoined from taking effect.

The voter ID law was passed with only GOP votes, with no GOP dissents, and against the counsel of every good government and civil rights organization.

The motion refused by the court was made by Wisconsin's partisan attorney general, J.B. Van Hollen who faces an election in 2014.

Wisconsin's Constitution, Article III, Section 1—"Every United States citizen age 18 or older who is a resident of an election district in this state is a qualified elector of that district."—strongly protects the right of citizens to vote against the efforts of politicians obstructing citizens' constitutional right to vote.

A government that undermines the right to vote imperils its own legitimacy as a government 'by the people, for the people and especially of the people,' (Judge Richard) Niess wrote in a decision striking down the GOP law. 'It sows the seeds for its own demise as a democratic institution' (Treleven, WSJ).

Two other federal cases also have also been filed against Wisconsin's voter ID law:  Frank v. Walker, (Case 11cv1128), (U.S. District Court for the Eastern District of Wisconsin); and Jones et al v. Deininger et al (Case 2:12-cv-00185), (U.S. District Court for the Eastern District of Wisconsin).

In a federal case, evidence has been obtained by Monica Wedgewood, an intern working for the ACLU, that military veterans would be prevented from voting, if the GOP law were to take ever take effect.

Jan 8, 2013

Supreme Court Race Should Focus on Rule of Law

"A reasoned, accurate explanation is not an inconsequential nicety that this court may disregard for the sake of convenience or haste. It is the cornerstone of the legitimacy of judicial decision-making. ... In hastily reaching judgment, Justice Patience D. Roggensack, Justice Annette K. Ziegler, and Justice Michael J. Gableman author an order, joined by Justice David T. Prosser, lacking a reasoned, transparent analysis and incorporating numerous errors of law and fact. This kind of order seems to open the court unnecessarily to the charge that the majority has reached a pre-determined conclusion not based on the facts and the law, which undermines the majority's ultimate decision."
- Chief Justice Shirley Abrahamson dissenting in Ozanne v. Ftizgerald, Fitzgerald, Ellis and Suder, Defendents, La Follette, Defendent-Petitioner-Movant. [Wisconsin and Wisconsin ex rel., Huebsch, Petitioners v. Sumi et al, Defendants (June 14, 2011)] Case effectively invalidated Wisconsin's Open Meeting law and upheld Scott Walker secretly-contrived, anti-worker-organizing Act 10 passed with unanimous GOP support and unanimous Democratic opposition.

Madison, Wisconsin -- Two challengers are slated to run against Wisconsin state Supreme Court Justice Patience Roggensack—Marquette University law professor Ed Fallone and well-regarded, lemon law attorney Vince Megna.
Justice Roggensack is one of the corrupt four on the Wisconsin Supreme Court, believing as her Republican colleague David Prosser does that her votes on the Court are to serve Republican constituencies and the GOP.

When Prosser was running for reelection last in March 2011, Prosser campaigned openly telling special interests how his past votes advanced their interests, not even bothering to declare himself an impartial jurist ascertaining the law and impartially applying it to cases that come before the state's top appellate court.

Roggensack will be somewhat more circumspect in her campaign, though as Chief Justice Shirley Abrahamson in the infamous Open Meeting-Worker Organizing case at the top of this piece, suggested: GOP justices reach pre-determined conclusions on political cases.

We can count on Roggensack, though, to message her campaign with clear displays of affinity with specific communities of interest and certain classes of litigants. 'I'll vote with these guys (the GOP),' is the message.

This message is an implicit admission of corruption.

The job of a Supreme Court justice is to act as an impartial judge seeking to find out what the law is and how the law applies to cases that come before the state's top appellate court.That's not a controversial assertion; it's fundamental to our judicial branch.

As the Wisconsin's Code of Judicial Conduct mandates; "'impartiality' (means) the absence of bias or prejudice in favor of, or against, particular parties, or classes of parties, as well as maintaining an open mind in considering issues that may come before the judge."

In the last 20 years in Wisconsin, I have seen only two state Supreme Court campaigns emphasizing the rule of law and impartiality—those of former Assistant Attorney General JoAnne Kloppenburg, and Chief Justice Shirley Abrahamson.

We have no culture of good government towards our judicial branch nor in our greater political culture—not from the corporate press, not from academia, not from judicial candidates generally—so it no wonder that corrupt partisans such as Justices  Roggensack, Ziegler, Gableman and Prosser get elected with turn-out generally in the 20-some percent range or less. [Prosser's narrow 2011 win over Kloppenburg with some 33 percent turn-out is an outlier.]

One can understand why some advocate "merit selection,' though this is short-sighted and foolish, in my opinion: I mean how can a partisan governor and partisan legislature be counted on to appoint impartial judges? How could a non-partisan panel appointing justices be ascertained?

Some suggestions for the candidates:
  • Educate the public about what the top appellate court does. Few voters have a faint clue
  • Make fidelity to "the absence of bias or prejudice in favor of, or against, particular parties, or classes of parties, as well as maintaining an open mind in considering issues that may come before the judge" the basis upon why you are running for Supreme Court justice

Aug 22, 2012

Corrupt AG Van Hollen Wants High Court to Reinstate Voter Obstruction Law

The Blind Leading the Blind - Brueghel
Wisconsin Attorney General J.B. Van Hollen (R) is betting the Wisconsin corporate media will not hammer the Republican Party for Van Hollen's petition to the Wisconsin Supreme Court to stay the two injunctions against the GOP's unconstitutional voter ID law.

It's a safe bet for Van Hollen and the GOP to make.

Denying the fundamental freedom to vote does not bring a high political price, not from the corporate media.


So, we get a Milwaukee Journal-Sentinel piece citing "supporters" (not mentioning supporters are Republicans and Tea Partiers) who point out that the new ID requirement did not produce problems in the one election in which it was operative.

Omitted are the facts that this February 21 election was the Spring primary election, with no statewide races on the ballot, very low turn-out, and an election in which the state Governmental Accountability Board (GAB) did not record the turn-out as only local races were on the ballot, as the GAB confirmed.

"The G.A.B. did not calculate statewide voter turnout for the February 2012 nonpartisan primary because there were no statewide races on the ballot – just local races," e-mailed Reid Magney, public information officer of the Wisconsin GAB.

Consequently, the February election featured turn-outs in the single digits, as mostly die-hard voters cast their votes.

This is the election the GOP argues is evidence that Voter IDs do not obstruct voters. Another GOP talking point is presented by the media to the public unchallenged.

In any event, people were stopped from voting in February such as 84-year-old Ruthell Frank of Brokaw, now a co-plaintiff in the federal case, Frank v. Walker, (Case 11cv1128), U.S. District Court for the Eastern District of Wisconsin.

Another example of lame media coverage, the Milwaukee Journal-Sentinel piece omits that the voter ID law was passed in the legislature with only GOP votes, no dissenting GOP votes, no Democratic votes, and that the GOP is pursuing similar voter ID laws in states in which the GOP controls the legislature and governor's office.

Political Culture

And of course the Republican and Tea Parties are openly hostile to the right to vote and pay no discernible price for their efforts at stopping citizens from voting.

In March, Van Hollen admitted that Wisconsin voters would be disfranchised by the GOP's voter ID law, so now his petition to make the law operative (staying the two injunctions) before the November election would in a healthy political culture constitute a high scandal against democracy.

We don't live in a healthy democracy.

United Wisconsin's Lisa Subeck slammed Van Hollen's move:

“Putting politics ahead of the law he is sworn to uphold, Wisconsin Attorney General J.B. Van Hollen is once again moving to disenfranchise as many as 300,000 Wisconsin voters who lack photo ID. Despite two previous court injunctions permanently striking down Wisconsin’s unnecessary and oppressive Voter ID law, today Van Hollen has requested that the Wisconsin Supreme Court immediately lift the orders that prevent the law’s enactment.

Van Hollen’s flagrantly political move comes just a few short months before the November Presidential election. The timing makes his intentions clear. With the selection of Paul Ryan as a vice presidential candidate, Wisconsin is set to be a crucial battleground in the race for President, and Van Hollen is attempting to disenfranchise the hundreds of thousands of seniors, students, minority, and low-income citizens who will be disproportionately impacted by this law. Van Hollen’s latest ploy reeks of political gamesmanship, and the Wisconsin Supreme Court should reject it outright.”
Still, Van Hollen's petition is a stretch. And his effort will likely be refused by the Supreme Court. Too naked a corrupt, partisan exercise even in this unhealthy democracy.

Information on the two state cases, League of Women Voters of Wisconsin v. Walker (Case 11CV4669) and Milwaukee Branch of the NAACP v. Walker (Case 11CV5492) are linked above.

How about Wisconsin Rep. James Sensenbrenner (R)? He championed the 2006 renewal of the Voting Rights Act, passed to stop state voter obstruction efforts.

No, word from Sensenbrenner's office is he would have no comment anymore on state voter obstruction efforts like Wisconsin's.

Two federal trials on the Wisconsin Voter ID law are set for the Spring 2013.

One Wisconsin Now, a civil rights group, released the following:
One Wisconsin Now Executive Director Scot Ross released the following statements upon news Republican Attorney General JB Van Hollen would petition the state Supreme Court to overturn, in advance of the November elections, Circuit Court rulings that the state’s anti-democratic voter identification bill is unconstitutional.
"JB Van Hollen has spent years, and untold tax dollars, unsuccessfully chasing phantom vote impropriety allegations to justify his support for disenfranchising hundreds of thousands of legal voters. He’s either lying about rampant “voter fraud” or he is incompetent at his job. Van Hollen announced he was going to do this at a Romney-Ryan campaign rally and now he’s using his taxpayer financed office to convince the partisan, conservative Supreme Court majority to do the political thing, not the right thing."
In 2008 as GOP presidential nominee Sen. John McCain’s state chair, in coordination with the Republican Party, he used his office to try to purge hundreds of thousands of legal voters from the rolls. And after a six-year partisan witchhunt, Van Hollen has found no instances of voter impropriety that would have been thwarted by voter identification.
Earlier this summer, it was revealed the Republican National Committee was behind anonymous legal efforts to enact the law. A complaint related to state Rep. Robin Vos (R-Burlington) and his participation in the suit, filed by One Wisconsin Now, is before the state’s Government Accountability Board.

Mar 19, 2012

Wisconsin High Court's Ruling on Voter ID Cases Will Be Historic

Update: Supreme Court refuses to take up voter ID cases (April 16, 2012)

Soon, the Wisconsin Supreme Court will hear one or more voter ID cases that have halted implementation of the GOP voter obstruction project.

The resulting high court decision this Spring or Summer will be a historic moment in Wisconsin.

This one decision will determine if Wisconsin is a lawless, unconstitutional state; or a democracy where the rule of law and the rights of citizens guaranteed in the Wisconsin Constitution hold sway over nihilistic politics.

For the State of Wisconsin well protects the right of citizens to vote in the Wisconsin Constitution (Article III) against any legislative or executive fiat that would "cancel or substantially burden a constitutionally guaranteed sacred right," as Judge Richard Niess writes in his March 12, 2012 decision.

No political party or movement can declare the sacred rights of classes of Wisconsin citizens to cease to exist while this party remains in power and acts in its perceived self interest. Judicial case law dating back over a century recognizes the primacy of voting rights in Wisconsin. These points are not controversial.

Voting in the young republic -
George Caleb Bingham
Looked at from the perspective on the ground: No constitutionally qualified, duly registered voter can walk over to the voting rolls table to obtain a ballot for casting his or her vote and then be told he or she is no longer qualified to vote.

The law is as clear as the stakes are high.

A government that undermines the right to vote imperils its own legitimacy as a government 'by the people, for the people and especially of the people,' (Judge) Niess wrote. 'It sows the seeds for its own demise as a democratic institution' (Treleven, WSJ).
Undermining the right to vote would, one might believe, provoke outrage at the responsible political party—the Republican Party.

But as the Republican Party commissars are well aware, their efforts are aimed at a minority of Wisconsin citizens; and the GOP will side-step discussion of killing constitutional rights with comparisons of voting to renting a video and then call this coordinated, nationwide GOP voter suppression effort 'common sense.'

Most citizens will blithely go about their business, thinking, 'I have my license, why don't they have their's,' an undemocratic notion devoid of appreciation for the constitutional rights of all citizens.

This is Republican politics at its worst, preying on apathy and the ignorance of rights that—if we are honest—we note define the American populace in our depoliticized, anti-democratic political culture.

Most journalists will also neglect the legal Wisconsin tradition of the right to vote, though a simple phone call to any credible political scientist or law professor will reveal facts not to this moment widely reported. Wisconsin scholars are quite willing to talk; it's a Wisconsin Idea thing. [Truthfully, I'm surprised a petition blasting the Voter ID law has not made the rounds.]

One attorney this morning, said, "I don't think they [the four Republican justices] will vote to uphold the [voter ID] law. It would be too blatant a partisan display," speaking on background.

I work as an sworn election inspector for the City of Fitchburg and I have seen up close and personal the popular hostility to voting rights that exists even in my liberal, highly educated community. Stick a given person behind a voter registration table, give this person a little authority, and the resulting behavior might shock even social psychologists studying the capacity of citizens to deny the rights of their fellow citizens living in the same community. It's difficult for me, again in a personal digression, to see this behavior with anything less than disgust.

This is the political culture we live in.

The only mechanism protecting our rights is the rule of law and those citizens willing to uphold it.

If the four Republican Supreme Court justices decide to act as an underground political movement and vote to deny the rights of Wisconsin citizens, we will have reached a point of crisis in Wisconsin.

Chief Justice Shirley Abrahamson will have no choice but to alert the citizenry that the rule of law no longer exists in Wisconsin, destroyed by the Republican Party, the institution of the Supreme Court already damned. Anything less than naming the perpetrators is acquiescence. One certainly could argue we have already reached this point.

Intellectual honesty and democratic values can still save the right to vote in Wisconsin; but this will require good-faith actors in journalism, the academy, the Republican Party, business and the Wisconsin citizenry to refuse to be silent anymore.

"The only cure for [political neurosis and fear] is a steady and unfrightened public opinion strong enough and expressive enough to show that respect for civil rights is also good politics in America," said Robert H. Jackson in 1939.

Aug 20, 2011

NYT Editorial: Wisconsin, a Study in Judicial Dysfunction

"Harsh state judicial campaigns financed by ever larger amounts of special interest money are eating away at public faith in judicial impartiality. There are few places where the spectacle is more shameful than Wisconsin, where over-the-top campaigning, self-interested rulings, and a complete breakdown of courthouse collegiality and ethics is destroying trust in its Supreme Court."
- NYT, August 20, 2011

Jun 19, 2011

Wisconsin Supreme Court's Decline in Scholarship Partially Is Press' Fault

"A reasoned, accurate explanation is not an inconsequential nicety that this court may disregard for the sake of convenience or haste. It is the cornerstone of the legitimacy of judicial decision-making. ... In hastily reaching judgment, Justice Patience D. Roggensack, Justice Annette K. Ziegler, and Justice Michael J. Gableman author an order, joined by Justice David T. Prosser, lacking a reasoned, transparent analysis and incorporating numerous errors of law and fact. This kind of order seems to open the court unnecessarily to the charge that the majority has reached a pre-determined conclusion not based on the facts and the law, which undermines the majority's ultimate decision.
- Chief Justice Shirley Abrahamson

A prominent piece on the cover of Sunday's Wisconsin State Journal authored by a talented journalist, Matthew DeFour, missed the mark in noting the open and "sharply worded" dissent of Chief Justice Shirley Abrahamsom and the "schism" in the Wisconsin Supreme Court regarding the Open Meeting case and generally.
Robert H. Jackson
It's difficult and sometimes unethical for members the legal community to state in effect that the four Republican justices of the seven-member Court are corrupt partisans.

Press Plays It Dumb

But DeFour surely can find a source on the UW-Madison law faculty who will speak the truth that Wisconsin's top appellate court's commitment to impartiality and application of the law has given way to corruption: Four votes to three.

To borrow from U.S. Justice Robert H. Jackson's (1941-1954) famous admonition to jurists; GOP operatives working as jurists on our state's top Court have a "perverted sense of practical values, as well as defects of character."

A schism is a contrived spin, and poor reporting, of the fact that the four GOP partisans are creatures of the chimera of corporate and religious right zealotry while the other justices actually take the rule of law and their offices seriously.

The GOP wing doesn't even attempt a considered opinion.

"You would think that they [the GOP justices] would be embarrassed to publish" said an attorney who has argued before the Court and speaks on background because it is considered unethical for an attorney to cast aspersions on the Court in this manner. "Everyone [attorneys] I talked to about it [the Open Meeting case] predicted in advance where the opinions would fall. The Republicans don't like Abrahamsom because she humiliates them [the GOP justices]. But this is about power, not legal scholarship."

A scholarly opinion from Justices Prosser, Roggensack, Ziegler and Gableman on a GOP political priority is about as likely as a disquisition on American history from Sarah Palin.

But don't look to the mainstream press to hold the Court to good government standards.

DeFour, like his equally talented colleague, Dee Hall, and really most journalists covering the Court, refuse to note Wisconsin's Code of Judicial Conduct that mandates "'impartiality' (meaning) the absence of bias or prejudice in favor of, or against, particular parties, or classes of parties, as well as maintaining an open mind in considering issues that may come before the judge."

It is regarded as irrelevant to legal coverage.

Justice Abrahamsom's dissent [in 2011AP613-LV;  2011AP765-W] follows:
Chief Justice Shirley Abrahamson (1976-Present)
¶74 SHIRLEY S. ABRAHAMSON, C.J. (concurring in part and dissenting in part). I agree that the Budget Repair Bill is not in effect. I further agree that the certification by the court of appeals should be denied.

¶75 Moreover, I agree that the challenge to the legality of the Budget Repair Bill, a bill that significantly affects all the people of this state, presents important fundamental constitutional issues about the separation of powers; the roles of the legislative, executive, and judicial branches of government; and judicial review.

¶76 It is exactly because the issues in the present case are of such constitutional and public policy importance that I do not join the order.

¶77 In a case in which the court is called upon to review the legitimacy of the legislative process, it is of paramount importance that the court adhere to the Wisconsin Constitution and its own rules and procedures, lest the legitimacy of the judicial process and this court's decision be called into question.

¶78 The Dane County Circuit Court took the time and made the effort to consider the issues carefully and write a 48-page decision, including findings of fact and conclusions of law, explaining and supporting its reasoning. In contrast, this court gives this important case short shrift. Today the majority announces for the first time that it is accepting the case. And today the majority decides the case.[3]

¶79 In rendering a decision, a court is to provide not merely an answer but also a reasoned, accurate explanation. A reasoned, accurate explanation is not an inconsequential nicety that this court may disregard for the sake of convenience or haste. It is the cornerstone of the legitimacy of judicial decision-making.

¶80 At first glance, the order appears to provide some support for broad conclusions reached on fundamental and complex issues of law. But on even casual reading, the explanations are clearly disingenuous, based on disinformation.

¶81 Justice Prosser's concurrence is longer than the order. The concurrence consists mostly of a statement of happenings. It is long on rhetoric and long on story-telling that appears to have a partisan slant. Like the order, the concurrence reaches unsupported conclusions.

¶82 In hastily reaching judgment, Justice Patience D. Roggensack, Justice Annette K. Ziegler, and Justice Michael J. Gableman author an order, joined by Justice David T. Prosser, lacking a reasoned, transparent analysis and incorporating numerous errors of law and fact. This kind of order seems to open the court unnecessarily to the charge that the majority has reached a pre-determined conclusion not based on the facts and the law, which undermines the majority's ultimate decision.

¶83 Justice N. Patrick Crooks explains the flaws in the order's and concurrence's attempt to recast the petition for supervisory writ as an original action. He explains why this court should decide this case in an orderly appellate review of the circuit court's order with a full opinion. I join his writing.

¶84 I write to emphasize that in a case turning on separation of powers and whether the legislature must abide by the Open Meetings Law and the Wisconsin Constitution in adopting the Budget Repair Bill, it is imperative that this court carefully abide by its authority under the Constitution and follow its own rules and procedures.

¶85 A court's failure to follow rules and a court's failure to provide a sufficient, forthright, and reasoned analysis undermine both the court's processes and the decision itself. Only with a reasoned, accurate analysis can a court assure the litigants and the public that a decision is made on the basis of the facts and law, free from a judge's personal ideology and free from external pressure by the executive or legislative branches, by partisan political parties, by public opinion, or by special interest groups.


¶86 At its most basic level this case is about the need for government officials to follow the Wisconsin Constitution and the laws.

¶87 The District Attorney's challenge to the Budget Repair Bill asserts that the Open Meetings Law is a codification of the mandates expressly provided for in the Wisconsin Constitution. The District Attorney relies on Article IV, Section 10, "[t]he doors of each house shall be kept open," and also on Article I, Section 4: "The right of the people peaceably to assemble, to consult for the common good, and to petition the government, or any department thereof, shall never be abridged."

¶88 The legislature declared in the Open Meetings Law that the legislature would comply with the Law to the fullest extent "in conformance with article IV, section 10" of the Wisconsin Constitution.[4] Statutes are interpreted to give effect to every word. A court assumes that the legislature says what it means, and means what it says. The words in a statute are not to be treated as rhetorical flair.

¶89 Nevertheless, the Attorney General asserts that the legislature need not abide by the Open Meetings Law; that the legislature can choose when and if it will follow the Open Meetings Law; and that courts cannot enforce the Open Meetings Law against the legislature and any of its committees.[5]

¶90 The legislature must play by the rules of the Wisconsin Constitution and the laws.

¶91 Playing by the rules and playing fair are integral to public trust and confidence in our government officials——legislative, executive, and judicial. Public trust and confidence in the integrity of the judicial branch is engendered by a court's issuing a reasoned public decision based on public records after public arguments. The judicial branch claims legitimacy by the reasoning of its decisions. "Any step that withdraws an element of the judicial process from public view makes the ensuing decision look more like fiat and requires rigorous justification."[6]

¶92 Trust and confidence in the integrity of the judicial branch as an institution is critical at all times but especially when a case has high public visibility, is mired in partisan politics, and is emotionally charged. The need for reasoned judgment is at its greatest in a case such as this one, in which substantial public policy and budgetary decisions of the coordinate branches may be affected.[7] The issues presented in this case are steeped in a politically charged environment and involve highly controversial public policy and budgetary matters.

¶93 That the judiciary has the power of judicial review, that is, the power to interpret the Constitution and hear challenges to the constitutionality of legislative enactments, without pressure from the executive or legislative branches, is a fundamental principle of the United States and Wisconsin Constitutions.

¶94 This fundamental principle of judicial review was described in Federalist No. 78,[8] which emphasized the importance of the separation of powers and of an independent judiciary to ensure that legislative enactments are consistent with the constitution.

There is no liberty, if the power of judging be not separated from the legislative and executive powers.

. . . .

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. . . .

A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.

¶95 Ascertaining the meaning of the Wisconsin Constitution and whether the enactment of the Budget Repair Bill complies with constitutional directives is the essence of the present case. And the court must do so adhering to the Constitution, laws, and its own rules of procedure.


¶96 The order and Justice Prosser's concurrence are based on errors of fact and law. They inappropriately use this court's original jurisdiction, make their own findings of fact, mischaracterize the parties' arguments, misinterpret statutes, minimize (if not eliminate) Wisconsin constitutional guarantees, and misstate case law, appearing to silently overrule case law dating back to at least 1891. This case law recognizes a court's power to review legislative actions in enacting laws when constitutional directives are at issue.

A. The Order and the Concurrence Inappropriately Use This Court's Original Jurisdiction.

¶97 The order mistakenly asserts that the State of Wisconsin and Secretary Huebsch filed "a petition for supervisory/original jurisdiction pursuant to Wis. Stat. §§ (Rules) 809.70 and 809.71." No petition for original jurisdiction pursuant to Wis. Stat. § (Rule) 809.70 was filed in this court by any party. The petition that was filed is captioned "petition for supervisory writ pursuant to Wis. Stat. § 809.71 and for immediate temporary relief pursuant to Wis. Stat. § 809.52," and the text of the petition adheres to the caption.

¶98 This court's authority for review is derived from the Wisconsin Constitution, which provides that the court has two types of jurisdiction: appellate and original.[9] They are separate and distinct jurisdictions, serving different purposes. "The concept of original jurisdiction allows cases involving matters of great public importance to be commenced in the supreme court in the first instance."[10]

¶99 There is nothing "original" or "in the first instance" here. By commencing an original action on the court's own motion to review the final judgment of the circuit court, the order and Justice Prosser's concurrence are blending the separate and distinct concepts of original and appellate jurisdiction.[11]

¶100 Why is this important? By blending what are under our constitutional authority separate and distinct jurisdictions——original and appellate——the order and concurrence attempt to skirt the normal standards of appellate review. Faced with no record, they conjure their own facts——something this court should never do, regardless of whether it is exercising appellate or original jurisdiction.

¶101 If this court wishes to take jurisdiction of the factual and legal issues presented in this matter, the legitimate and constitutional route is through an appeal. And indeed Justice Prosser reviews the circuit court's decision as if this case were an appeal.

B. The Order and the Concurrence Make Their Own Factual Findings.

¶102 The order states: "The doors of the senate and assembly were kept open to the press and members of the public during the enactment of the Act. The doors of the senate parlor, where the joint committee on conference met, were open to the press and members of the public. WisconsinEye broadcast the proceedings live.[12] Access was not denied."

¶103 Footnote 1 of the order implies that these findings of fact are supported by the transcripts of the hearings before the circuit court, which were filed in "appendices accompanying the various motions and petitions filed herein."

¶104 Justice Crooks, at ¶143 n.15, powerfully explains that reliance on information in transcripts not in the record before this court is a departure from settled precedent.

¶105 In his concurrence, Justice Prosser makes his own factual findings. Indeed, most of his concurrence is a statement of happenings. Yet Justice Prosser asserts in ¶19 "that there are no issues of material fact that prevent the court from addressing the legal issues presented."

¶106 Where do all of these facts come from? Not from the certification proceedings (which the order denies) or from the petition for supervisory writ (which the court transforms into an original action). Not from the decision or final judgment of the Dane County Circuit Court. Indeed, some of the "findings of fact" are in direct contravention of the facts found by the circuit court. By casting this as an original action, the four justices are able to skirt facts that may impede the rush to their ultimate destination.

¶107 The four justices are entitled to their opinions, but they are not entitled to their own facts. This court is not a fact-finding court.

¶108 If findings of fact are required in the exercise of our original jurisdiction, there are procedures for getting those facts. Instead of adhering to those procedures, the four justices set forth their own version of facts without evidence. They should not engage in this disinformation.

C. The Order and the Concurrence Mischaracterize the Arguments of the Parties.

¶109 No party argues to the court, as the order claims, that "the legislature amended Article IV, Section 10 of the Wisconsin Constitution by its enactment of the Open Meetings Law." The order builds a straw house so that it can blow it down.

¶110 Justice Prosser suggests that the argument of the parties is that the Open Meetings Law is a codification of Article IV, Section 10 of the Wisconsin Constitution such that the statutes amend the Constitution. Justice Prosser too builds a straw house to blow down with uncontested, accepted blackletter law that the Wisconsin Constitution cannot be changed by statute.

D. The Order and the Concurrence Fail to Address Adequately the Role of the Secretary of State.

¶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.

E. The Order and the Concurrence Minimize, If Not Eliminate, The Wisconsin Constitutional Guarantee, Article IV, Section 10, That "The Doors of Each House Shall Be Kept Open."

¶112 This constitutional provision, Article IV, Section 10 of the Wisconsin Constitution, has never before been interpreted by this court or any Wisconsin court. The order interprets and dismisses the constitutional provision in four short sentences without citation or rationale——an unsupported, four-sentence interpretation of a fundamental constitutional guarantee ensured by the people of Wisconsin!

¶113 After stating its own factual findings, the order dismisses the significant constitutional argument with four words: "Access was not denied." By this interpretation, the constitutional right of the people to know what its legislature is doing has been significantly minimized, if not eliminated.

¶114 Instead of the order's four-sentence analysis of this important constitutional provision, Justice Prosser sets forth a two-paragraph analysis. He goes further than the order with a novel interpretation of this constitutional provision. He states that the "manifest purpose" of Article IV, Section 10 of the Wisconsin Constitution is "to prevent state legislative business from being conducted in secret except in extremely limited circumstances." From whence cometh Justice Prosser's "manifest purpose?" He doesn't say.

F. The Order and the Concurrence Misstate Case Law, Appearing To Silently Overrule A Court's Power To Review Legislative Actions For Compliance With Constitutional Directives.

¶115 The order and Justice Prosser's concurring opinion treat the answers to the significant questions of law presented as clear and beyond dispute, controlled by uncontroverted precedent. The order and the concurrence do not tell the full legal story.

¶116 The court of appeals certified the legal questions to this court because the answers are not clear and our precedent is conflicting. The court of appeals determined that clarification is required regarding "the interaction between the Open Meetings Law and a line of cases dealing with the separation of power doctrine," citing to four cases: Goodland v. Zimmerman, 243 Wis. 459, 10 N.W.2d 180 (1943); State ex rel. Lynch v. Conta, 71 Wis. 2d 662, 239 N.W.2d 313 (1976); State ex rel. La Follette v. Stitt, 114 Wis. 2d 358, 338 N.W.2d 684 (1983); and Milwaukee Journal Sentinel v. Wisconsin Dep't of Admin., 2009 WI 79, 319 Wis. 2d 439, 768 N.W.2d 700.

¶117 "In sum," the court of appeals stated, "Goodland and Stitt appear to favor the Secretary of State's position [the position now forwarded by the State of Wisconsin and Secretary Huebsch] that courts lack authority to invalidate legislation enacted in violation of the Open Meetings Law or, at the least, to do so before publication. In contrast, Lynch and Milwaukee Journal Sentinel support the District Attorney's view."

¶118 Neither the order nor the concurrence comes to grips with the issue in the present case, namely whether the Open Meetings Law complies with constitutional directives, specifically Article IV, Section 10 and Article I, Section 4, so that the court must enforce the Open Meetings Law.

¶119 First, the order misrepresents Milwaukee Journal Sentinel v. Wisconsin Department of Administration, 2009 WI 79, 319 Wis. 2d 439, 768 N.W.2d 700, as not involving the legislature's compliance with a statute. In the Milwaukee Journal Sentinel case, the court declared that it had jurisdiction to determine whether the legislature complied with Wis. Stat. § 111.92(1)(a), a statute governing legislative procedure, because that statute furthered the constitutional directives found in Article IV, Section 17(2) of the Wisconsin Constitution.

¶120 Second, the order fails to acknowledge that the Milwaukee Journal Sentinel case explained that a court will interpret and apply a procedural statute to determine whether the legislative action complies "with constitutional directives":

[W]e need not decide whether Wis. Stat. § 111.92(1)(a) is a rule of legislative proceeding because a statute's terms must be interpreted to comply with constitutional directives. Accordingly, even if the statute might otherwise be characterized as a legislative rule of proceeding, we may interpret the statute and apply it to the legislative action to determine whether that action complies with the relevant constitutional mandates. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803); [State ex rel. La Follette v.] Stitt, 114 Wis. 2d [358, at] 367, [338 N.W.2d 684 (1983)]; McDonald v. State, 80 Wis. 407, 411-12, 50 N.W. 185 (1891).

Therefore, because both Wis. Stat. § 111.92(1)(a) and Article IV, Section 17(2) require the legislature to take additional actions to amend existing law or to create new law, and we have jurisdiction to interpret the Wisconsin Constitution and the Wisconsin Statutes, we have the authority to evaluate legislative compliance with § 111.92(1)(a). Stitt, 114 Wis. 2d at 367, 338 N.W.2d 684. Accordingly, we reject WSEU's argument in this respect, and proceed to determine whether the legislature complied with § 111.92(1)(a) in light of the Wisconsin Constitution.

Milwaukee Journal Sentinel, 319 Wis. 2d 439, ¶¶19, 20 (footnote omitted).

¶121 Justice Prosser fails to mention the case.

¶122 The Milwaukee Journal Sentinel case was based on at least three earlier cases, all concluding that a court may require the legislature to comply with a legislative procedural rule or statute if the procedural rule or statute furthers a constitutional directive.[13]

¶123 The order and Justice Prosser's concurrence put in jeopardy Milwaukee Journal Sentinel and prior case law that declares that a court may determine whether legislative action in enactment of a law complies with a relevant constitutional directive.

¶124 Milwaukee Journal Sentinel (and its precursors) correctly state the applicable principles of judicial review, the doctrine of separation of powers, and the functions of the legislature and judiciary.


¶125 In sum, the litigants and the public deserve more than the majority's hasty judgment.

¶126 Each person must abide by the law. Each branch of government must abide by the law. This court must ensure that the law governing judicial decision-making is followed. Justice Brandeis stated these principles eloquently as follows:

In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. . . . Against that pernicious doctrine this court should resolutely set its face.

Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting).

¶127 The resoluteness called for by Justice Brandeis is no less applicable to the observance of the fundamental principles of the courts in our system of government. Unreasoned judgments breed contempt for the law. The majority, by sacrificing honest reasoning, leads us down a pernicious path. The order today departs from fundamental principles. It fails to abide by the court's Constitutional authority and its own rules and procedures and harms the rights of the people from whom our authority derives.[14] The legitimate and constitutional route to decide the issues presented is through an appeal.

¶128 For the reasons stated, I do not join the order.

¶129 I am authorized to state that Justices ANN WALSH BRADLEY and N. PATRICK CROOKS join this writing.

[3] This case came to the court at the end of March. Thereafter, the court issued two separate orders asking the parties to address numerous questions. We held extended oral argument on June 6 presented by six parties.

[4] Wis. Stat. § 19.81 (3): "In conformance with article IV, section 10, of the constitution, which states that the doors of each house shall remain open, except when the public welfare requires secrecy, it is declared to be the intent of the legislature to comply to the fullest extent with [the Open Meetings Law]."

[5] The District Attorney and Senator Miller assert that the Attorney General is attacking the constitutionality of the Open Meetings Law by asserting that the court cannot enforce the Law against the legislature. In other words, the Attorney General is arguing that the Open Meetings Law is categorically invalid with regard to the legislature. For a discussion of a categorical attack on the constitutionality of a statute, see State v. Ninham, 2011 WI 33, ___ Wis. 2d ___, 797 N.W.2d 451. The Attorney General does not have the general authority to attack the constitutionality of the statute, without statutory authorization from the legislature or some other constitutional or common-law doctrine giving the Attorney General such authority. State v. City of Oak Creek, 2000 WI 9, ¶33, 232 Wis. 2d 612, 605 N.W.2d 526.

[6] Hicklin Eng'g, L.C. v. Bartell, 439 F.3d 346, 348-49 (7th Cir. 2006).

[7] As other courts have admonished, reasoned judgment is especially needed "when a judicial decision accedes to the requests of a coordinate branch, lest ignorance of the basis for the decision cause the public to doubt that 'complete independence of the courts of justice [which] is peculiarly essential in a limited Constitution.'" United States v. Aref, 533 F.3d 72, 83 (2d Cir. 2008).

[8] The Federalist Papers, written in 1787-88, were drafted to promote ratification of the United States Constitution. They remain a significant primary source for constitutional interpretation.

[9] See Wis. Const. art. VII, § 3(2): "The supreme court has appellate jurisdiction over all courts and may hear original actions and proceedings."

[10] Michael S. Heffernan, Appellate Practice and Procedure in Wisconsin § 25.1 (5th ed. 2011). See also Petition of Heil, 230 Wis. 428, 446, 284 N.W. 42 (1938); In re Exercise of Original Jurisdiction, 201 Wis. 123, 229 N.W. 643 (1930).

This case is not an original action in any sense of the phrase. The Dane County Circuit Court has already issued a final determination regarding each and every question of fact and question of law that is addressed in the order.

[11] A petition for an original action will be granted when the questions presented are of such importance "to call for a speedy and authoritative determination by this court in the first instance . . . ." Petition of Heil, 230 Wis. 428, 446, 284 N.W. 42 (1939).

This court has previously taken original jurisdiction in two cases despite an identical case pending before the circuit court. In both cases the issue was narrow and an emergency existed with no other remedy available; an appeal could not be taken timely to get the person on the ballot within the statutory framework for printing ballots; review was necessary to protect Wisconsin citizens' right to vote for the candidate of their choosing. See State of Wisconsin ex rel. Nader v. Circuit Court for Dane County, No. 2004AP2559-W, unpublished order (2004); State ex rel. Barber v. Circuit Court for Marathon County, 178 Wis. 468, 190 N.W. 563 (1922).

In the present case, there is no such exigency. First, the issues presented raise fundamental constitutional principles relating to the powers of the executive, legislative, and judicial branches of government, as well as questions regarding the scope of the rights of the people of this State to know about the actions taken by their government and their right to access the legislative process. The issues are not narrow, and the issues involve conflicting precedent.

Second, there is no "emergency." The Attorney General asserts that an emergency exists because each day the alleged breach of separation of powers is not resolved irreparable damage is done to the representative government of this State. But if that assertion meets the definition of "emergency," then any time any party asserts that a law or an action is unconstitutional it would constitute an "emergency" for this court to decide. That's not the law of the state or country.

The "ordinary course" of an appeal could afford the petitioners any warranted relief. In the alternative, the legislature could pass the Budget Repair Bill in conformance with the Open Meetings Law, rendering the circuit court's determinations ineffective. This court could still decide the important separation of powers issues presented.

[12] Press coverage is not necessarily the equivalent of allowing the public to be present. Cf. Douglas v. Wainwright, 714 F.2d 1532, 1542-43 (11th Cir. 1983), vacated, 468 U.S. 1206 (1984), adhered to on remand, 739 F.2d 531 (11th Cir. 1984) (relating to the constitutional guarantee of a public trial).

[13] See State ex rel. La Follette v. Stitt, 114 Wis. 2d 358, 364, 338 N.W.2d 684 (1983) (A court "will not intermeddle in what we view, in the absence of constitutional directives to the contrary, to be purely legislative concerns . . . . [C]ourts generally consider that the legislature's adherence to the rules or statutes prescribing procedure is a matter entirely within legislative control and discretion, not subject to judicial review unless the legislative procedure is mandated by the constitution" (emphasis added).).

See State ex rel. Lynch v. Conta, 71 Wis. 2d 662, 695, 239 N.W.2d 313 (1976), in which the court was asked to enforce an earlier version of the Open Meetings Law. The court observed that the "time-honored precept, established in Marbury v. Madison, [provides that] the judiciary may review the acts of the legislature for any conflict with the Constitution" (emphasis added).

As early as McDonald v. State, 80 Wis. 407, 411-12, 50 N.W. 185 (1891), substantially similar language appeared: "The bill for ch. 488 was therefore regularly passed, and the chapter is a valid law, unless it comes within the provisions of sec. 8, art. VIII, of the [Wisconsin] constitution" (emphasis added).

[14] Our state constitution declares: "The blessings of a free government can only be maintained by a firm adherence to justice, moderation, temperance, frugality and virtue, and by frequent recurrence to fundamental principles." Wis. Const. art. I, § 22.