Showing posts with label state government. Show all posts
Showing posts with label state government. Show all posts

Apr 18, 2021

Black Lives Matter Protesters Claim Innocence of Touching Racist State Sen; D.A. Bows to Lack of Evidence, Makes No-Jail Offer

No Deal, Say Black Lives Matter Workers, as D.A.'s Office Wants Beyond Reasonable Doubt Charging Standard Changed to Reasonable Inference for This Case
 

Updated - Madison, Wisconsin — There is no evidence that two Dane County women ever laid a finger on State Sen Tim Carpenter (D-Milwaukee) at a late-night June 23, 2020 confrontation at a Black Lives Matter demonstration.

Still, a criminal case against Kerida O’Reilly and Samantha Hamer remains at the behest of the anti-Black Lives Matter (BLM) state legislator who has championed prisons and police and the drug war, before confronting a BLM demonstration, then launching a media-political blitz that included accosting a black state Senate candidate in a tirade for which Carpenter apologized and admitted he was "rash and reactionary." [See, for example, news coverage SpectrumNews1, WTMJ, Fox News.]

There is no video showing the women —  Kerida O’Reilly and Samantha Hamer, well-regarded  community activists and Black Lives Matter supporters — ever laid a finger on Carpenter.

Both civil rights workers are being prosecuted for the felony crime of Substantial Battery with Intent to Cause Bodily Harm and Party to a Crime, a galling and even more disingenuous charge. 

Hypothetically, the D.A. could charge anyone near the confrontation that Carpenter began with being Party to a Crime.

Bowing to the ridiculous lack of evidence, "The two people charged with the beating of a state senator have been offered a deal by prosecutors that would include no jail time and deferred prosecution," WKOW-TV (Galli, Madison) reports this weekend.

No Deal, Say Black Lives Matter Workers

Reports Tony Galli:

'My client rejected the proposed plea offer because it would have required an admission of guilt, and my client, quite simply, is not guilty,' O'Reilly's attorney Jessa Nicholson Goetz says. 'We will not be resolving this matter for anything short of a dismissal because that is what we believe justice requires.'

The deferred prosecution program would technically lead to a dismissal of O'Reilly's charge if program requirements were met.

'Due to ethical rules, I can’t comment on the specifics of any negotiation at this point,' says Hamer's attorney, Adam Welch. 'However, it has always been our position that Ms. Hamer is innocent of the charge that has been brought against her, so she has no intention of pleading guilty to something she didn’t do.'

No eyewitness has identified the accused as laying a finger on Carpenter.

Madison police detective Linda Trevarthen, who headed the investigation, also swore under oath no witness interviewed saw the two women touch Carpenter, in a hearing last Summer (Rickert,  Wisconsin State Journal).

Tim Carpenter says he cannot identify Mses. O’Reilly and Hamer as ever having touched him.

It's not surprising noone can identify anyone else, because according to Carpenter and another witness, the confrontation that Carpenter incited included some eight to 10 people during a chaotic melee around Midnight.

No matter. Carpenter and the Dane County District Attorney's office continue their criminal pursuit of the Black Lives Matter protesters, two socially conscious women in their 20s with no criminal records, who nevertheless stand accused of the felony crime at the Black Lives Matter protest held last Summer in reaction to the police torture and killing of George Floyd.

Dane County District Attorney Office Changes Its Charging Standard for This Case

Mses. O’Reilly and Hamer have maintained their innocence since the June 2020 protests.

The Dane County District Attorney’s Office say it only charges defendants when its office can prove charges to a trial jury beyond a reasonable doubt.

This oft-made proclamation that the standard of beyond a reasonable doubt is used to determine charging decision is demonstrably untrue in the O’Reilly and Hamer cases.

See, for example, for the announcement, "Ismael R. Ozanne said that the Dane County District Attorney’s Office is declining to prosecute [xx] because there is not enough evidence to prove beyond a reasonable doubt that he is guilty" (WISC-TV. 2018).

Beyond a reasonable doubt.

Even Asst District Attorney William Brown, known for over-the-top prosecutions and Manichean posturing in court, admitted in August 2020 that, "We don’t know exactly what happens after that other than we have a witness that says various people began kicking and punching. There is a reasonable inference that those two people who are aggressively running at him are the ones involved in the exact same incident" (Rickert, Wisconsin State Journal).

Notice what Brown did at the August hearing?

Brown replaced the finding of criminal guilt beyond a reasonable doubt as the standard used by the District Attorney's office to determine charging with a reasonable inference.

The District Attorney need not use such a high burden of proof — guilt beyond a reasonable doubt — as the basis to determine whether to bring criminal charges, but the Dane County District Attorney office claims it does.

However, guilt beyond a reasonable doubt as the standard of proof that a jury must reach to find a criminal defendant guilty is a bedrock principle ensuring the presumption of innocence, as guaranteed by Due Process Clauses of the Fifth and Fourteenth Amendments.

Consider two points.

One. The Dane County District Attorney’s Office is proceeding on a case that nowhere approaches guilt beyond a reasonable doubt.

Two. The two Black Lives Matter protesters could agree to a deferred prosecution agreement, never set a foot in jail and have the charge stricken from their records.

Both women refused the offer because no reasonable jury can ever find these women guilty of any crime, and because they are innocent.

Why the change of charging standards for this case?

Because Ozanne's conduct in his elected office of public trust is an example of a civil servant working under the color of law, substituting his perceived political expediency to displace the community, the Constitution and his duties.

The Dane County District Attorney’s Office should be ashamed.

But shame in law enforcement is difficult to locate.

I wrote the District Attorney an email last Summer. 

The email is reproduced below:
--
Ismael,

As a member of our community, I have followed with grave concern the cases of Kerida O’Reilly and Samantha Hamer.

I am aware that you do not know how, and by whom and with what force violence was inflicted in the confrontation among Tim Carpenter and depending on whom you believe — the police quote a journalist saying some ten people, you say two people — and those who may be criminally responsible.

Did these two women use their elbows, fists, feet, head, or blunt instruments? You have no idea, yet you are charging them with being party to substantial battery by undetermined persons, a "group," as Carpenter told police.

Are you satisfied with Carpenter's credibility?

Did you know Mr Carpenter did not request medical assistance after speaking with protest medic and peacekeepers, as indicated in audio published by WORT News.

Did you know that after a WKOW-TV crew member phoned 911, Carpenter declined to go to the hospital?

Have you checked out Carpenter's story and timeline of the evening of June 23 and early morning of June 24?

Have you viewed video of Carpenter's 'collapse' performed right in front of WKOW-TV?

Do you ascribe responsibility to Mses. O’Reilly and Hamer because they are convenient faces on a video?

Carpenter said he was attacked by a "group." Yet, you divine O’Reilly and Hamer?

I ask you to drop these bogus cases, and issue a public apology to Kerida O’Reilly and Samantha Hamer, and Black Lives Matter.

Mike

Michael Leon
Marketing and Public Relations Consultant
http://malcontends.blogspot.com/

Nov 9, 2020

Democrat Party to Black Lives Matter: Drop Dead

Statues Outweigh People in Democrat Party

Madison, Wisconsin — In police-state America, police are just as destructive, and just as deadly as before the moment Minneapolis Police killed George Floyd in May.

The Spring-Summer seems a long time ago, doesn't it? Not to Jacob Blake.

Republicans and Democrats are unified in their defense of police as an institutional and violent check on black and brown people asserting their humanity.

Take Wisconsin. Not one Democratic legislator has introduced legislation on decarceration, decriminalization, police violence and police defunding. And there are no calls for these protections against police.

I can't think of another state more sorely in need of a police cleansing than Wisconsin. 

To be clear, police will kill you, will terrorize you, will ruin you financially, imprison you, and defame you. There are no limits, and Democrats will do nothing. 

Not even a letter to the local daily calling for defense of people against police.

A Milwaukee State Senator — the drug warrior and anti-Black Lives Matter Tim Carpenter (D-Milwaukee) — traveled to Madison in June to confront Black Lives Matter liberation protestors, worked to record and virtually deliver the liberation workers to rightwing doxxers, was confronted by marchers and after a melee, embarked on a mission to imprison as many Black Lives Matter workers as possible.

White supremacists have doxxed, (publish private or identifying information about a particular individual on the Internet, typically with malicious intent), and endangered liberation protesters across the country, so folks were nervous that late June night, perfect prey for Carpenter looking for attention.

The racist Carpenter then went on a political rampage against people of color.

He accosted and maligned a black candidate for the Democratic Party nomination for State Senate District 26 in Dane County, before being forced to issue a public apology in July.

Carpenter, a cop lover, co-sponsored a bill to expand the Wisconsin Criminal Code to criminalize any damage to statues, statues!, (not black people, open season remains).

The black candidate maligned by Carpenter, Nada Elmikashfi, objected to the proposed legislation and an enraged Carpenter became unhinged and went on a rant that Carpenter later described as "rash and reactionary."

Writes Elmikashfi on July 16, commenting on Carpenter's co-authorship of his Senate statue bill initiative:

"Get me in the senate so I can block this absolute bullshit. You shouldn’t have been assaulted Senator Carpenter; but that doesn’t mean you get to block our civil rights movement. If this is passed on a bipartisan basis; @GovEvers needs to veto it. #BlackLivesMatter."

Carpenter is known around the capitol for his dislike of women, especially women of color. 

Carpenter went apoplectic, resulting in a multi-day rant that concluded with the intercession of the state Party Chair and the Senate Minority Leader criticizing Carpenter who eventually apologized, (The Capital Times).

At the June Black Lives Matter march, Carpenter faked a collapse in front of WKOW-TV at the capitol, and began his major media campaign demonizing Black Lives Matter. Not defending.

This fake collapse was preceded by Carpenter's hollered conversation, as the state senator spoke with several protests medics and peacekeepers in an eight-minute conversation captured on audio, (Pittman/WORT News), that shows Carpenter declining medical attention before faking his collapse.

Carpenter, who takes his antipathy towards black people to extremes, is nevertheless emblematic of the Democrat Party nationally.

Writes AOC yesterday:

Meanwhile, Carpenter and Dane County continue their ridiculous criminal pursuit of the Black Lives Matter protesters Kerida O’Reilly and Samantha Hamer, two socially conscious area women in their 20s with no criminal records, stand accused of the felony crime of Substantial Battery with Intent to Cause Bodily Harm against State Sen. Tim Carpenter (D-Milwaukee) for not-even-alleged action at a June 23-24 Black Lives Matter protest.

That's right. Carpenter says in Court he never saw the two women never even touch him at the June Black Lives Matter protest and yet he claims he knows they're guilty of Battery and wants them charged (they are charged), and convicted.

Hey, the two women are Black Lives Matter supporters so no evidence needed to convict, say Carpenter and his Democrat Party allies.

Legally, the cases of Black Lives Matter protesters Kerida O’Reilly and Samantha Hamer will blow up in the faces of the Democrat Party.

Politically and morally, we as a community have already lost because we did not do enough to stand up for these two brave women.

So, faced with a corrupt district attorney's office, a racist State Senator Tim Carpenter, and a supine Democrat Party, we as a community can protest, write, and alert the community that two more civil rights workers are about to suffer another injustice through the continuation of this ludicrous prosecution.

Kerida O’Reilly and Samantha Hamer attended a routine hearing last week. The cases have not been yet dismissed yet.

Folks can contact State Sen Tim Carpenter (D-Milwaukee) to ask why he rejects decarceration, decriminalization, police defunding. As we work with our historic movement, Carpenter instead sponsors a bill expanding criminal code to protect statues and works to persecute two innocent Black Lives Matter workers.
(608) 266-8535
Sen.Carpenter@legis.wisconsin.gov
--

I wrote District Attorney Ismael Ozanne an email on July 31. 

We cannot stay silent, no matter how many District Attorney Ismael Ozannes and Derek Chauvines stain an office of public trust.

The email is reproduced below:
--
Ismael,

As a member of our community, I have followed with grave concern the cases of Kerida O’Reilly and Samantha Hamer.

I am aware that you do not know how, and by whom and with what force violence was inflicted in the confrontation among Tim Carpenter and depending on whom you believe — the police quote a journalist saying some ten people, you say two people — and those who may be criminally responsible.

Did these two women use their elbows, fists, feet, head, or blunt instruments? You have no idea, yet you are charging them with being party to substantial battery by undetermined persons, a "group," as Carpenter told police.

Are you satisfied with Carpenter's credibility?

Did you know Mr Carpenter did not request medical assistance after speaking with protest medic and peacekeepers, as indicated in audio published by WORT News.

Did you know that after a WKOW-TV crew member phoned 911, Carpenter declined to go to the hospital?

Have you checked out Carpenter's story and timeline of the evening of June 23 and early morning of June 24.

Have you viewed video of Carpenter's 'collapse' performed right in front of WKOW-TV?

Do you ascribe responsibility to Mses. O’Reilly and Hamer because they are convenient faces on a video?

Carpenter said he was attacked by a "group." Yet, you divine O’Reilly and Hamer?

I ask you to drop these bogus cases, and issue a public apology to Kerida O’Reilly and Samantha Hamer, and Black Lives Matter.

Mike

Michael Leon
Marketing and Public Relations Consultant
http://malcontends.blogspot.com/


Aug 8, 2020

District Attorney Ozanne's Decision to Prosecute Black Lives Matters Workers Is Disgrace

Madison, Wisconsin — The Dane County District Attorney’s Office concluded charges against John Doe cannot be proven to a trial jury beyond a reasonable doubt.

Variations of this generic statement explaining a decision to prosecute or not, routinely emanate from the district attorney.

The problem is our current district attorney sometimes engages in a political process to arrive at a legal determination rather than take an honest look at findings applied to the evidentiary standard of beyond a reasonable doubt that Ozanne claims guides his decisions.

Ozanne's, and not just Ozanne's, corruption is an example of a civil servant working under the color of law, substituting his perceived political expediency to displace the community, the Constitution and his duties.

Corruption and political prosecution define the current cases of Black Lives Matter protesters Kerida O’Reilly and Samantha Hamer.

Both civil rights workers are being unjustly prosecuted for the felony crime of Substantial Battery with Intent to Cause Bodily Harm.

Funny thing is there is no specific allegation detailing how Mses O’Reilly and Hamer battered the alleged victim, State Sen. Tim Carpenter (D-Milwaukee), a rightwing, self-admitted "rash" drug warrior who has worked against black folks to build the carceral state over three decades.

No allegation of fists being thrown, nor elbows, feet, blunt instrument, nothing. 

The alleged victim, Carpenter, has not identified the defendants as touching him.

No eyewitness has identified Mses O’Reilly and Hamer as laying a hand on Carpenter.

No video exists showing Mses O’Reilly and Hamer as laying a hand on Carpenter.

In fact, according to Carpenter and another witness, the confrontation that Carpenter incited included some eight to 10 people during a chaotic melee

Did Carpenter, with a racist past and a proven hostility to the protesters, throw a punch first, and others then interceded to defend a victim?

No evidence has been made public that indicts Carpenter or any other single person. Yet, Ozanne says he has concluded charges against Mses O’Reilly and Hamer can be proven to a trial jury beyond a reasonable doubt.

Reports Chris Rickert in the Wisconsin State Journal on the decision of Judge Circuit Court Judge Stephen Ehlke at a probable cause hearing to allow these cases to go to trial:

Despite vigorous arguments from the attorneys for Samantha Hamer, 26, and Kerida O’Reilly, 33, both of Madison, Circuit Court Judge Stephen Ehlke found there was enough probable cause to continue with the case against the women, both of whom are charged with substantial battery in the June 24 attack.

Hamer’s attorney, Adam Welch, and O’Reilly’s attorney, Nathan Otis, argued that testimony from the lead Madison police detective in the case did not point to evidence that their clients had been the ones to punch or kick state Sen. Tim Carpenter, D-Milwaukee. ...

'(Carpenter) has not been able to say whether Ms. Hamer specifically touched him in any way. Is that right?' Welch asked Madison police detective Linda Trevarthen.

'Correct,' Trevarthen said.

Good enough for the cops. Good enough for Ehlke, and for Ozanne fronting for Carpenter because they share the same Party affiliation.

So, faced with a corrupt district attorney's office, we as a community can protest, write, and alert the community that two more civil rights workers are about to suffer another injustice.

I wrote Ozanne an email on July 31. We cannot stay silent, no matter how many Ismael Ozannes and Derek Chauvines stain an office of public trust.

The email is reproduced below:
--
Ismael,

As a member of our community, I have followed with grave concern the cases of Kerida O’Reilly and Samantha Hamer.

I am aware that you do not know how, and by whom and with what force violence was inflicted in the confrontation among Tim Carpenter and depending on whom you believe — the police quote a journalist saying some ten people, you say two people — and those who may be criminally responsible.

Did these two women use their elbows, fists, feet, head, or blunt instruments? You have no idea, yet you are charging them with being party to substantial battery by undetermined persons, a "group," as Carpenter told police.

Are you satisfied with Carpenter's credibility?

Did you know Mr Carpenter did not request medical assistance after speaking with protest medic and peacekeepers, as indicated in audio published by WORT News.

Did you know that after a WKOW-TV crew member phoned 911, Carpenter declined to go to the hospital?

Have you checked out Carpenter's story and timeline of the evening of June 23 and early morning of June 24.

Have you viewed video of Carpenter's 'collapse' performed right in front of WKOW-TV?

Do you ascribe responsibility to Mses. O’Reilly and Hamer because they are convenient faces on a video?

Carpenter said he was attacked by a "group." Yet, you divine O’Reilly and Hamer?

I ask you to drop these bogus cases, and issue a public apology to Kerida O’Reilly and Samantha Hamer, and Black Lives Matter.

Mike

Michael Leon
Marketing and Public Relations Consultant
http://malcontends.blogspot.com/

Jul 30, 2020

Black Lives Matter Prosecution — One Bogus Charge Dropped; Atty Calls Remaining Charge "Shockingly Thin"

State Sen Tim Carpenter performs his collapse in front of a
WKOW-TV crew to dramatize a confrontation with
Black Lives Matter protesters.
Updated - Madison, Wisconsin — "Kerida O’Reilly and Samantha Hamer were arrested on charges of substantial battery and robbery with use of force," reported The Hill this week.

The arrest was a rush to judgement by Madison Police working against a political movement held in disdain by law enforcement.

Police and one rash, drug-warrior, state senator want these and other Black Lives Matter protesters behind bars.

One problem, though not for police, is the two young women are innocent. The case is a political prosecution.

Exemplifying a widely held view among local police, in 2017, Police Chief Mike Koval (ret) said he canceled his NFL subscription amid "taking a knee" protests because this protest is "self-absorbed ... diatribe."

And the police are not too hot on mass protests this Summer, much less taking a knee.

The Madison Police Union this week issued a vote of "no confidence" in the new progressive mayor for her temerity to publicly acclaim the First Amendment and express admiration for the protesters.

Wisconsin media and rightwing political operations have already found the two Black Lives Matter protesters guilty.

But facts can be stubborn things.

Dane County District Attorney Ismael R. Ozanne dropped the robbery with use of force charge yesterday, raising questions why this canard was included in the arrest warrant. But you won't find such questions in the local corporate media.

The two defendants' attorneys — Ms. O’Reilly's attorney, Nathan Otis, and Ms. Hamer's attorney, Adam Welch — made a motion to dismiss the remaining charge — substantial battery.

Reports the Associated Press:

O’Reilly’s attorney, Nathan Otis, said in an email to The Associated Press that it will become clear that she didn’t commit any crime, and that the lack of evidence will become clear as the case progresses.

In a separate email to the AP, Hamer’s attorney, Adam Welch, said his client is 'absolutely not guilty' and that prosecutors’ case against her 'is shockingly thin.'
District Attorney Ozanne can't tell you when, where, how and by whom Carpenter was allegedly battered. Neither can Carpenter. According to reports, Carpenter manage to incite some eight to 10 people during the chaotic melee.

No matter, Ozanne refused to drop the remaining charge. Court Commissioner Brian Asmus refused to dismiss it.

The alleged victim, Wisconsin State Sen Tim Carpenter (D), is a Milwaukee legislator who has worked to build the carceral state for decades, always busily working to imprisoning and demonizing black and brown folk.

Just this month Carpenter was reprimanded by the Democratic Party of Wisconsin and the State Senate Minority leader for online bullying and harassment of a black legislative candidate who dared criticize Carpenter's proposed expansion of the Wisconsin Criminal Code.

The Wisconsin Criminal Code. As a local Madison jurist is fond of saying, "Read the [fracking] statutes."

I did. The crime of which two women stand accused are not sustained by the weakest standard of evidence, (WKOW-TV, Pittman/WORT News).

Available audio and video of the confrontation that Carpenter began show a deceitful man who feigned a collapse in front of a WKOW-TV crew.

Carpenter wants blood. He wants as many Black Lives Matter protesters behind bars, and is not choosy who that is.

Two women protesters supporting Black Lives Matter are out on signature bonds.

This case should not see the light of a courtroom. But facts are not the only stubborn things in Dane County.

Jul 29, 2020

State Sen Carpenter's Faked Collapse Will Not Hold up to Examination

Wisconsin State Sen Tim Carpenter claims to crowd he
supports Black Lives Matter, pointing out he once
shared a flight with Lt. Gov Mandela Barnes (D).
Updated - Madison, Wisconsin — A good day for Wisconsin State Sen Tim Carpenter (D).

News this week is two Black Lives Matter protesters are charged with multiple felonies following a late-night June 23 confrontation that Carpenter started, a long-time aim of the legislator championing prisons and police.

Should this affair go to trial, the narcissistic state senator will face close examination of his conduct that will not hold up under scrutiny. Carpenter has worked his whole legislative career mobilizing the war against drugs directed against people of color, so his work with police to imprison Black Lives Matter protesters is a coup for this racist state legislator. Carpenter claimed to a crowd on June 23 how much he supports Black Lives Matter, pointing out in his soliloquy that he once shared a flight to Turkey with Wisconsin Lt. Gov Mandela Barnes (D) who is black.

The crowd did not sound convinced. After his hollered conversation, Carpenter spoke with several protests medics and peacekeepers in an eight-minute  conversation captured on audio, (Pittman/WORT News).

Carpenter sits down for a rest after spotting WKOW-TV crew.
Carpenter voiced no medical complaints. A calm Carpenter can be heard reacting with sympathy to several protesters telling the senator that they had been shot at, and almost run-down on several occasions that night.

The conversation seemed agreeable at that point.

Carpenter did not phone 911 for medical help.

Then, Carpenter walked to his car, spotted WKOW-TV crew members, walked towards the TV crew, and performed an unconvincing 'collapse' in an apparent bid for the TV station's attention.

Carpenter did not fall uncontrollably on the pavement. He gently set himself down to a sitting position, and then laid softly in the comparatively soft decorative brush on the ground next to the sidewalk and WKOW staff.

Carpenter then began a four-week media blitz.
While Carpenter tended to his I-hate-Black-Lives-Matter crusade, the veteran racist then signed on to a bill criminalizing defacing of statutes, making the protesters' point that this guy cares more about statutes than black lives.

Nothing from Carpenter about decarceration, decriminalization, police violence and police defunding.

But Carpenter was not finished.

Nada Elmikashfi 

Nada Elmikashfi is a candidate for the Democratic Party nomination for State Senate District 26 in Dane County.

Elmikashfi criticized Carpenter's proposal to make criminal felons out of anyone defacing a statue, an initiative echoing Donald Trump's protect-the-statues crusade.

Writes Elmikashfi on July 16, commenting on Carpenter's co-authorship of his Senate initiative seeking sponsors:

"Get me in the senate so I can block this absolute bullshit. You shouldn’t have been assaulted Senator Carpenter; but that doesn’t mean you get to block our civil rights movement. If this is passed on a bipartisan basis; @GovEvers needs to veto it. #BlackLivesMatter."
Carpenter is known around the capitol for his dislike of women, especially women of color. 

Carpenter went apoplectic, resulting in a multi-day rant that concluded with the intercession of the state Party Chair and the Senate Minority Leader criticizing the unhinged Carpenter who eventually apologized.

Reports The Capital Times:
Wisconsin's Democratic leaders are denouncing 'online bullying' perpetrated by Sen. Tim Carpenter, D-Milwaukee, after he targeted Madison Senate candidate Nada Elmikashfi in a flurry of Twitter posts over the last few days that eventually led to the brief suspension of his account for harassment.
Both the state Democratic Party and Senate Minority Leader Janet Bewley decried Carpenter's actions in statements Monday morning, noting the Milwaukee senator's behavior 'crossed the line.'
'Nobody should be subjected to online bullying, which disproportionately harms women and people of color — not during this moment of long-overdue reckoning with racial justice, and not ever,' party officials wrote in their statement.
Carpenter is silent now.

Most likely this is because any defense attorney can win an acquittal against the charge-stacking facing two women against whom Carpenter holds a bias because of their gender and race solidarity.

Carpenter has given defense attorneys a lot of ammo.

A good guess is that this affair will end with restorative justice as Tim Carpenter's story is so full of holes, he cannot politically survive close examination of his conduct and his appalling record.

Jul 28, 2020

Gov Tony Evers on Defensive Again as He Dithers on Mandatory Masks

A Facebook message speaks for many across Wisconsin.
Madison, Wisconsin — The push against Wisconsin Gov Tony Evers (D) for his refusal to issue executive orders mandating masks in public is mounting.

Tony 'Mush' Evers will hesitate, dither, wobble, anything but act.

This Evers' failure to act will cost lives.

Evers' tendency to hesitate played out in the run-up to the April 7 elections in which Evers ignored public health officials, local elections officials and the Wisconsin people until he finally bowed to the national ridicule to which the state was subjected.


Just out from The Capital Times:

Gov. Tony Evers has yet to issue a statewide mask order.

The governor says that, in the face of a surge in coronavirus cases, a statewide mask mandate is 'something we’re considering.' To our view, it is time for Evers to stop considering and start acting.

Evers cannot allow himself to be constrained by shortsighted partisans who oppose everything he does. Wisconsin is now the only state in the country with a Democratic governor that does not have a mask mandate. It is time for Evers to call the bluff of Republicans when it comes to matters of public health and safety. The governor has the power to take action to save lives and the economy, and Wisconsinites want him to use it.

Jun 21, 2019

Wisconsin Supreme Court Issues Absurd and Corrupt Decision for Republican Party's Political Coalition; Vote Is Four-to-Three

League of Women Voter v. Tony Evers consolidates
Wisconsin Republicans' latest scheme.

Republican Justices' Opinion Defies Law and Logic


Madison, Wisconsin— The four rightwing justices on the Wisconsin Supreme Court issued another ruling to benefit legislative Republicans in Wisconsin's 'lame-duck session' case.

The case is: 2019 WI 75 SUPREME COURT OF WISCONSINCASE NO.: 2019AP559.
The League of Women Voters, Disability Rights of 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 v. Tony Evers.

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

All four voted to uphold a series of laws and appointments passed in the Dec 2018 Extraordinary Session called to benefit the Republican Party and weaken two constitutional state offices won by Democrats in the 2018 election.

At issue is whether the lame-duck Dec 2019 extraordinary session was legal and constitutional.

The Republican justices prevailed 4-3 in the case.

Republican 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.

A dissent is authored by Justice Rebecca Frank Dallet, and is joined by Justices Shirley S. Abrahamson and Ann Walsh Bradley.

The activist rightwingers on the Court appear to be no longer bound by the Wisconsin Constitution, Wisconsin statutes and statutory interpretation.

Now, in light of the Republican justices' ruling, the state Constitution and laws governing the legislature's sessions are contradictory, meaningless and no longer applicable.

Reads Justice Dallet's dissent (pp 5-8 ) in part:

¶47 The majority opinion subverts the constitutional text in two ways to legitimize the December 2018 extraordinary session. First, the majority opinion asserts that the extraordinary session was really part of a regular session because when the Legislature first met on January 3, 2017, to convene its regular session, it stayed in a continuous two-year "biennial session" until January 7, 2019.7 It is elementary to point out that an "extraordinary," or "special," session by its very name, is the opposite of a "regular," or "planned," session. Although the title of Wis. Stat. § 13.02, "Regular sessions," alone is not dispositive, it 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.

¶48 Under the majority opinion's reading of Article IV, Section 11, the words "at such time" and "unless" become superfluous because the Legislature could meet at any time. Yet, this court has recognized that "[t]o avoid surplusage, our analysis must also take into account and give meaning to the choice of the word[s]" in the constitutional provision. Appling, 358 Wis. 2d 132, ¶25. A continuous two-year session

7 The majority opinion continuously references the term "biennial session"; however, Wisconsin has not had a biennial legislative session for nearly 50 years. Since 1971, the law has mandated that the Legislature "shall meet annually." Wis. Stat. § 13.02. Section 13.02(3) says that the Legislature "shall" hold "at least one meeting in January of each year." If there is a singular meeting coextensive with the entire biennial session period, this phrase is meaningless.
would also render meaningless several other laws which distinguish between days that the Legislature is in session and days when it is not.8 The majority opinion fails to logically explain how a continuous two-year session comports with the constitutional mandate to meet at "such time as shall be provided by law."9

¶49 Second, the majority opinion further subverts the constitutional text by redefining the clause "as shall be provided by law" to include a joint resolution passed by the Legislature.10 The majority accepts the Legislature's assertion

8 For example, Wis. Stat. § 13.625(1m)(b)1 prohibits lobbyists from making financial contributions to legislators until "the legislature has concluded its final floorperiod." Under this statutory section, no lobbyist could ever be certain that the Legislature "has concluded its final floorperiod." Further, Wis. Stat. § 757.13, which limits the courts' jurisdiction over members of the Legislature while they are "in session," would be rendered virtually meaningless if the Legislature was in one perpetual session. Finally, Wis. Stat. § 13.123, which sets forth the extent to which legislators are entitled to a per diem allowance for food and lodging, would be meaningless if the Legislature met perpetually. Under the majority's reasoning, legislators would be entitled to per diem reimbursement every day of every year, which undermines the entire purpose of a per diem reimbursement.

9 Since 1848, Article IV, Section 11 has been amended twice, but it is noteworthy that neither revision has transferred extraordinary convening authority to the Legislature.

10 In a novel argument that the majority raises on behalf of the Legislature, it asserts that like extraordinary sessions, floorperiods are not mentioned in the statutory text. Majority op., ¶22. However, as counsel for the League properly pointed out at oral argument, the work schedule, which governs the regular session, references floorperiods and the legislative journals inform us that floorperiods have long been considered part of the regular session. On the other hand, non- prescheduled floor sessions, like the extraordinary session here, were not part of the regular session.
that the work schedule set forth in JR1 allowed the Legislature to reserve to itself every unscheduled day for the possible convening of an extraordinary session. I agree with the circuit court that the Legislature's purported ability to meet any day, even if it is not scheduled, is the antithesis of a work schedule as set forth in Wis. Stat. § 13.02(3) "by both definition and force of logic." The distinction between a session "provided by law" as set forth in § 13.02 and the Legislature's attempt to reserve to itself through a joint resolution the unlimited power to schedule an extraordinary session is made even clearer by the existence of specific statutory provisions that do explicitly set forth extraordinary sessions.11 See, e.g., Wis. Stat. § 196.497(10)(c) ("[w]ithin 120 days after the bill is introduced the appropriate committees in each house of the legislature shall authorize an extraordinary session of the legislature to commence within the 120 days and to extend until the legislature passes the bill or passes a joint resolution which disapproves of the agreement or modification . . . ) (emphasis added); see also 1987 Wisconsin Act 4 (temporarily creating Wis. Stat. § 13.02(3m) to authorize an extraordinary session between the biennial session period's two regular annual sessions). Ultimately if the Legislature wanted to meet in December 2018 in accordance with the Constitution, it should have passed a bill to authorize extraordinary sessions, as it has done in the past. ...

11 The explicit reference to an extraordinary session in our statutes also shows that regular and extraordinary sessions are treated distinctly and are different in kind. This is more than just a dispute over taxonomy and the proper naming of sessions. 

Jun 19, 2019

Wisconsin's 'Lame-duck' Case Decision Coming Friday, June 21

Wisconsin Supreme Court at the state capitol. Inside this
  iron door deliberation dies, Republican reign is ascendant.
Madison, Wisconsin — The Wisconsin Supreme Court will release its opinion Friday, June 21 in the politically charged lame-duck case, reads a June 19 Court memo.

The case is 2019AP559 League of Women Voters of Wisconsin v. Tony Evers.

The public release of the ruling was announced on the Wisconsin Supreme Court's Opinions Scheduled for Release Memo, June 19.

Republican-leaning justices on the Court are expected to issue a decision on this intensely political case 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.

One such brief was filed by the Wisconsin Democracy Campaign last month in May, (Mal Contends).

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.
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