No Runny Eggs

The last sentence of the order from Dane County District Court Richard Neiss (appointed by Jim Doyle to the bench in 2004) that denies the Green campaign’s request for a temporary injunction (both links from JSOnline) against the State Doylie Election Board’s ruling retroactively declaring $467,884 of the $1.3 million the Green campaign says it all regarding the approach of Team Craps –

The bottom line is that the Elections Board reached the correct result, regardless of the infirmities, if any, in its process.

Allow me to translate – it doesn’t matter whether the state Constitution (specifically, Article 1, Section 12) is violated, just as long as Team Craps and the State Doylie Elections Board gets to commit highway robbery. Morever, the Doylie judge has set up the rationale to complete the full-monty Grand Theft Courts of the $1.24 million the state “Justice” Department now wants to pull off.

Just how is the state Constitituional prohibition against ex post facto laws violated by Team Craps, which now includes a hand-picked judge? First, let’s take a look at the section itself (the annotated version of the state Constitution is linked above):

No bill of attainder, ex post facto law, nor any law impairing the obligation
of contracts, shall ever be passed, and no conviction shall work corruption of blood or forfeiture of estate.

Just what is an ex post facto law? The annotated version of the state Constitution defines it as such:

An ex post facto law is one that punishes as a crime an act previously committed, that: 1) was innocent when done; 2) makes more burdensome the punishment for a crime, after its commission; or 3) deprives one charged with a crime of any defense available at the time the act was committed. State v. Thiel, 188 Wis. 2d 695, 524 N.W.2d 641 (1994).

The annotated verison further goes on to note that this provision applies to judicial pronouncements:

The ex post facto prohibition applies to judicial pronouncements as well as legislative acts. The question to be addressed is whether the new law criminalizes conduct that was innocent when committed. State v. Kurzawa, 180 Wis. 2d 502, 509 N.W.2d 712 (1993).

So, what was the status of state law regarding the conversion of a federal campaign to a state campaign as of January 25, 2005, the date that Mark Green’s campaign made said conversion? Since the State Doylie Elections Board subsequently changed the applicable administrative rule (ElBd 1.39), we have to head to pages 9 and 10 SEB legal counsel George Dunst’s memo of January 26, 2005, where Dunst describes how the administrative rule that applied to a conversion of a federal campaign to a state campaign could be amended to prohibit same. Stripping out the language underlined and restoring the language struck through reveals the status of ElBd 1.39 as of the date Mark Green converted his campaign from a federal one to a state one:

ElBd 1.39 Conversion of federal campaign committee to state committee.

(1) As used in this rule,
(a) “Federal campaign committee” means the campaign committee of a candidate for federal office, which is not registered with a state or local filing officer, and
(b) “State campaign committee” means the personal campaign committee of a candidate for state or local office.

(2) A federal campaign committee may convert to a state campaign committee and use funds collected for federal purposes in a state or local campaign filing a campaign finance registration statement, pursuant to s. 11.05, Stats., with the appropriate filing officer and simultaneously filing a campaign finance disclosure report showing the sources of all funds on hand at the time of the report, pursuant to the requirements of s. 11.06 (1) (a), (b), (c), (d) and (f), Stats. In determining the sources of funds on hand and allocating those funds among the sources, the funds shall be treated on a last-in, last-out basis, so that they will be attributed in the report to the most recent sources, in the full amount received from each source.

Indeed, Judge Neiss acknowleges, as part of the “Undisputed Facts” of his order, that the emergency rule (ElBd 1.395) that the Green campaign seeks relief from did not apply at the time of the conversion (emphasis in the original):

17. On January 25, 2005, Congressman Mark Green converted his federal campaign committee to a state campaign committee by filing a campaign finance registration statement and a campaign finance disclosure report….

19. On January 26, 2005, the Board met for the purpose of, among other matters, discussing the issue of the conversion of federal campaign committees to personal state campaign committees….

20. The Board voted to promulgate an emergency rule (ElBd 1.395). The Emergency Rule was published on or about February 3, 2005….

21. The Emergency Rule states:

ElBd 1.395 Use of funds transferred by a federal campaign committee to a state committee restricted.

Funds which have been converted by a federal campaign committee to a Wisconsin state campaign committee may not be used for political purposes in Wisconsin if the contribution of those funds to the federal campaign committee would not have complied with Wisconsin law if the contribution had been made directly to a Wisconsin campaign committee. The state campaign committee shall divest itself of such money in compliance with s.11.26(11), Stats.

22. Wis. Stat. § 227.24(c) states with respect to emergency rules:

A rule promulgated under par. (a) takes effect upon publication in the official state newspaper or on any later date specified in the rule and, except as provided under sub (2), remains in effect only for 150 days.

The ruling then goes on to justify the denial of the injunction by essentially denying that the version of ElBd 1.39 that existed on January 25, 2005 ever existed. I’m not a lawyer, and I don’t profess to play one on the Web, but that sure looks like a violation of the state Constitution to me. Of course, we all know what the state Constitution means to Jim “Craps” Doyle (WEAC/Potawatomi-For Sale) and his Craps-packed State Supreme Court.