No Runny Eggs

It may be short on actual names attached to the attributed version, but Christian Schneider put up the most-complete timeline yet of a version of the events surrounding the incident between Justices David Prosser and Ann Walsh Bradley, extending from before the incident itself to the leak of the news to Soros-funded “media”, over at National Review. Let’s see if I can do the Cliff Notes’ version:

– The week prior to the incident, three of the justices were prepared to issue an order on the case of Act 10. Prosser wanted to delay some to avoid the appearance of rushing as oral arguments occured on 6/6, and apparently reached a deal with Chief Justice Shirley Abrahamson that the order would be issued on 6/14.

– On 6/13, no notice that an order would be forthcoming had been made, so at 5:30 pm, Prosser and the other conservative Justices went looking for Abrahamson to get an explanation. They found her in Bradley’s office.

– Prosser remained outside the office and got into a heated discussion with Abrahamson over the issue of timing of the release of the order.

– Bradley rushed out to confront Prosser, with one source saying she was shaking a fist in his face and another saying they were “nose to nose”.

– Prosser pushed Bradley about the shoulders to get her out of his face, and in the course of that, contacted her neck. At the same time, another Justice was attempting to pull Bradley back from Prosser.

– On 6/15, 2 days after he had been notified of the incident by Bradley, Capitol Police Chief Charles Tubbs talked to all 7 Justices, including the not-present Justice Patrick Crooks, about violence in the workplace. No further action appears to have been made by the Capitol Police, which has jurisdiction in the Capitol building and thus the Supreme Court offices, and to date, nobody has pressed criminal charges.

I do recommend, as always, reading the entire piece. There are a bunch of details I left out of the above summary.

Revisions/extensions (10:10 pm 6/28/2011) – Two people who have been following the ins and outs of the Supreme Court longer than I have weighed in on just how long the Court has been dysfunctional, and who the constant in the dysfunctionality is.

John Mercure of WTMJ-AM interviewed former Supreme Court Justice William Callow (he served between 1977 and 1992 and still is an active reserve judge) on his show this afternoon, and Callow fingered Abrahamson as the chief troublemaker.

Meanwhile, Rick Esenberg, in a comment on his Sunday morning take, remembered that the majority of the court had endorsed Abrahamson’s opponent…in 1999.

I note two things – the second-longest serving Justice (Bradley) joined the Court in 1995, and three current Justices were not on the Court in 1999.

Also, welcome Memeorandum readers.

Over at his new gig at the Wisconsin Reporter, Kevin Binversie put up the most-exhaustive take yet on the Supreme Rumble. I’ll give you the last three paragraphs to whet your whistle:

There are a lot of factors here, all of which are along the lines of stupid and petty. So stupid and petty, you’d think we were dealing with toddlers and not some of the most respected legal minds in the state of Wisconsin.

Yes, Prosser has a temper and a short fuse. This is a well-known and documented fact since his Assembly days. However, what’s lost in a lot of the coverage is the apparent sycophantic defense Walsh Bradley has for Chief Justice Abrahamson if the “she charged him version” of the events is true.

The battle of factions within the Wisconsin Supreme Court is well-known in both the state’s legal and political circles; but now it’s to a point that public back-stabbing and reports of physical altercations only help feed growing concern the court is teetering into professional dysfunction. Somewhere, someone has to be the adult in the room; but from the look of things, we’re a long way from that with the justices of the Wisconsin Supreme Court.

The battle of the factions really started to boil over when Justice Michael Gabelman defeated appointed Justice Louis Butler in 2008. Since then, Abrahamson, Bradley and Patrick Crooks have done everything they could to remove Gabelman from the Court, going so far as to ignore the recommendation of the Wisconsin Judicial Commission that an allegation of false political advertising against Gabelman in that campaign did not warrant action by the Court, which prompted the “intemperate” remark from Prosser behind closed doors and leaked from a Bradley e-mail.

In case you’ve been in a cave all weekend, there was a physical altercation between Justices David Prosser and Ann Walsh Bradley a week and a half ago as all but one of the Supreme Court justices were in Bradley’s chambers discussing the timing of the release of the order affecting Act 10, the budget repair/collective bargaining law. What is known is Prosser made some remarks directed at Chief Justice Shirley Abrahamson after she suggested that the release would be delayed until after the end of June (this despite a majority ready to issue an order), Bradley demanded Prosser leave her chambers, and contact about Bradley’s neck ensued. The under-reported version of the events from anonymous sources (as far as I can tell, the only media reports that include that version come from the Milwaukee Journal Sentinel and that version is “mysteriously” missing from the AP coverage widely reported nationwide) claim Bradley charged Prosser with fists raised and that the contact was defensive on Prosser’s part, while Bradley is belatedly publicly claiming Prosser put her in a “chokehold”, matching the first “anonymous” claims.

I’ll send you over to Althouse for a steady stream of updates, including the less-than-fully-acknowledged wholesale ReWrite™ of the original Soros-funded Wisconsin Watch piece after the MJS turned up the version that included a charging Bradley. I do have a heap of questions on this:

– Why was this discussion happening in Bradley’s chambers? Bradley is neither the Chief Justice (Abrahamson, who was present, is) nor an author of any part of the set of orders/concurrences/dissents. I don’t claim to know standard operating procedure at the Wisconsin Supreme Court, but it would be logical that, especially when the Chief Justice is involved in discussions, the discussions would happen in the Chief Justice’s chambers.

– Why did Bradley choose to intervene in a verbal dispute between Prosser and Abrahamson? The last time I checked, Abrahamson was able to handle herself in the verbal arena. If Bradley felt the need to intervene, both Prosser and Abrahamson should have been asked to depart the room.

– If it was a “chokehold”, why has the only action by the Capitol Police been, as of this morning, been to have the chief, Charles Tubbs, meet with all 7 justices (including the not-present Patrick Crooks)? I know we’re talking about the Capitol Police and Chief Wiggu…er, Tubbs here, but how long does it take to interview 6 Justices and perhaps an equal number of staff (note; I have not seen anything that states that anybody other than the Justices were present)?

WITI-TV has reported that the Capitol Police anticipates releasing a statement today, though that has not come as of yet. The Journal Sentinel is quoting anonymous sources that the Capitol Police will be handing over the investigation to the Dane County Sheriff’s office.

– The $64 million question from Darleen Glick – (D)o you think that a woman like Bradley, who seriously considered calling the cops because Prosser used a profanity about another justice would not call the cops if she was the victim of an unprovoked, physical assault in front of witnesses? More properly, that question would be one of pressing charges as at some point the Capitol Police was notified of the incident.

On the other hand, Milwaukee County Board Chairman Lee Holloway has physically assaulted fellow board members on multiple occassions, and no police report was filed.

Revisions/extensions (1:48 pm 6/27/2011) – Almost immediately after I posted, Tubbs turned over the investigation to the Dane County Sheriff’s office (same link).

With the passage of the 5 pm deadline today to file to run in the recalls of Democrat Senators Dave Hansen, Jim Holperin and Bob Wirch, the timeline for elections has been set, assuming none of the 9 challenges by the incumbents are successful in voiding the recall election. Barring that, here’s the timeline for Recall Mania, with the note that the three “placeholder” candidates advanced by the Democrat Party of Wisconsin in districts currently held by Republicans to ensure primaries did not file economic interest statements and thus won’t be on the ballot):

July 12 – Recall Democrat “primaries” (DPW-endorsed candidate listed first, RPW protest caniddate second) in the 2nd Senate District (Nancy Nusbaum vs. Otto Junkerman), 8th Senate District (Sandy Pasch vs Gladys Huber), 10th Senate District of Shelia Harsdorf (Shelly Moore vs Issax Weix), 14th Senate District (Fred Clark vs Rol Church), 18th Senate District (Jessica King vs John Buckstaff) and 32nd Senate District (Jennifer Shilling vs James Smith).

July 19 – Recall Republican primaries (pending filing of economic interest statements by all involved) in the 12th Senate District (Kim Simac vs Robert Lussow), 22nd Senate District (Fred Ekornaas vs Jonathan Steitz) and 30th Senate District (John Nygren vs David VanderLeest). The potential Democrat primary in the 30th between incumbent Dave Hansen and Josh O’Harrow evaporated when O’Harrow failed to file signatures by today Also, if one or more of these candidates fail to file statements of economic interest by Friday, the July 19th date will become a general election against the incumbent(s) in the affected districts, Democrats Jim Holperin in the 12th, Robert Wirch in the 22nd and Dave Hansen in the 30th, all with no third-party/independent candidates on the ballot.

August 9 – Recall general elections in the Senate districts currently held by Republicans – Robert Cowles in the 2nd, Alberta Darling in the 8th, Shelia Harsdorf in the 10th, Luther Olsen in the 14th, Randy Hopper in the 18th and Dan Kapanke in the 32nd. There are no third-party/independent candidates on the ballot.

August 16 – Recall general elections in the Senate districts currently held by the Democrats (assuming there were primaries held on July 19th).

WisPolitics also reports that the Government Accountabillty Board will file a motion with Dane County Judge Richard Niess, already set to hear challenges from Hopper and Kapanke, and also the judge that allowed the attempted consolidation of all the elections, to consolidate all the challenges to the recall election orders into a single case. While the RPW attorney welcomed the move, the DPW attorney was skeptical of including the challenge of the three Democrats in the consolidation. I wonder how much of that skepticism was because it would likely take that case out of Maryann Sumi’s courtroom.

Revisions/extensions (7:51 pm 6/21/2011) – To answer PaulM’s question in another post, unless an incumbent is certified as having been defeated, he or she continues to serve as a state senator until the expiration of the term at the beginning of January, 2013. Of course, the Senate, once it ends its current session at the end of this month, isn’t in session again until September.

If you’re looking for learned, legal-scholarly opinion on the majority opinion that restored Act 10 to law, I’ll send you over to William Jacobson at the soon-to-be-off-Blogger Legal Insurrection. Of course, there is some football-spiking involved.

I’ll provide the obligatory clip from “Billy Madison”, which sums up what the majority told Maryann Sumi yesterday quite well…

[youtube]http://www.youtube.com/watch?v=5hfYJsQAhl0[/youtube]

Disclosure – I am not a lawyer. Further, I do not have access to the records of the Goodland case from 1943, so I cannot answer how the Supreme Court, and if memory serves, the appeals court before it, dealt with the timing issues related to the striking down of the circuit court’s attempt to block publication of an act. Therefore, there is a possibility this analysis could be in error.

In case you missed the news, the Wisconsin Supreme Court, as part of taking the case of Wisconsin Act 10 on original jurisdiction, vacated and voided ab initio all orders and judgements issued by Dane County Circuit Judge Maryann Sumi in the original case that had blocked implementation of the act as Sumi exceeded her authority set by both the state constitution and the Supreme Court by enjoining publication of the act.

Predictably, Democrat Secretary of State Doug La Follette thinks he can delay for at least a bit longer its enforcement because, based solely on the first of Sumi’s orders, he changed the designated publication date from March 25 to a date uncertain. Meanwhile, Assembly Speaker Jeff Fitzgerald (R-Horicon), speaking on Mark Belling’s show on WISN-AM shortly after the ruling, and Sen. Mary Lazich (R-New Berlin) believe Act 10 is now law. For his part Department of Administration Secretary Mike Huebsch says his office will begin implementing the act “when appropriate”. Let’s see if I can sort some of this out.

While the order from the Supreme Court does not directly address the date of publication, from which, in normal circumstances, the effectiveness of an act stems, it can be inferred from both the order and the statutes that the act is considered by the Court to have been published on March 25, and by Wis. Stat. §991.11, which states, “Every act and every portion of an act enacted by the legislature over the governor’s partial veto which does not expressly prescribe the time when it takes effect shall take effect on the day after its date of publication as designated under s. 35.095 (3) (b),” and by the order yesterday voiding all of Sumi’s blocking orders, it is currently in effect.

I’ll leave the distinction between the three possible effective dates (March 26, June 14 or June 15) to the professionals as that can and probably will have legal consequences for those local units of government who cut deals with public unions on and after March 26. I will, however, push on with the publication date.

Paragraph 10 of the order comes closest to addressing whether the act is already published, and indeed is the only paragraph of the order itself that mentions either the office of the Secretary of State or the person who holds it:

10 Article IV, Section 17 of the Wisconsin Constitution vests the legislature with the constitutional power to “provide by law” for publication. The legislature has set the requirements for publication. However, the Secretary of State has not yet fulfilled his statutory duty to publish a notice of publication of the Act in the official state newspaper, pursuant to Wis. Stat. § 14.38(10)(c). Due to the vacation of the circuit court’s orders, there remain no impediments to the Secretary of State fulfilling his obligations under § 14.38(10)(c).

Let’s review what that section, which covers the duties of the Secretary of State says:

Publish in the official state newspaper within 10 days after the date of publication of an act a notice certifying the number of each act, the number of the bill from which it originated, the date of publication and the relating clause. Each certificate shall also contain a notice of where the full text of each act can be obtained. Costs under this paragraph shall be charged to the appropriation under s. 20.765 (1) (d).

Do note the “after the date of publication” part of the time limit to publish the notice, and the requirement to include the “date of publication” in the notice, in § 14.38(10)(c). Also, do notice the specific language in the order saying that La Follette had “…not yet fulfilled his statutory duty to publish a notice of publication of the Act…”. The inclusion of that specific language, and not any language that refers to the publication of the act itself, strongly suggests that the majority believes that the act was already published by state law.

The Supreme Court, as stated above, voided ab initio all of Sumi’s orders, including her first temporary restraining order on March 18 enjoining La Follette (and only La Follette) from any further action in the process of publication and implementation of Act 10. To put it in English, that means that in the eyes of the Court, none of Sumi’s orders ever were valid.

La Follette, who on March 14 had designated March 25 as the publication date, subsequently sent notice to the Legislative Reference Bureau informing them that, pursuant to that TRO he rescinded the publication date and would not issue a new one until a later date.

Since the TRO no longer has, and indeed never did have, any legal standing, the question is whether La Follette had any statutory authority to change the publication date days after designating one. A quick review of the timeline is in order:

• On March 11, Governor Scott Walker signed Act 10, thus enacting it, and deposited it in the Secretary of State’s office for publication.
• On March 14, La Follette, pursuant to § 35.095(3)(b), designated to the Legislative Reference Bureau March 25, the last date allowed by statute, as the date of publication of the act.
• On March 18, Sumi issued her first TRO enjoining La Follette from publishing the act. Also on that date, La Follette used that TRO as the justification in an attempt to change the March 25 date of publication to a date uncertain.
• On March 25, the Legislative Reference Bureau, pursuant to § 35.095(3)(a), published the act on the last date allowed by statute with a note that, due to the TRO, La Follette was enjoined from publshing the act.

There is a further limitation to the Secretary of State’s ability to designate a date of publication beyond the 10 working day requirement in § 35.095(3)(b). § 14.38(10)(a) reads, “No later than the next working day following the deposit of an act in his or her office, provide written notice to the legislative reference bureau of the act number and date of enactment, and the designated date of publication of the act under s. 35.095.”

There is, as far as I can tell, no statutory language that gives the Secretary of State any authority to, after the working day following the deposit of an act in his office, change the designated date of publication, much less to a date beyond 10 working days after the date of enactment.

In this case, since La Follette designated March 25 as the date of publication on March 14, the working day after the act was deposited in his office, and the Supreme Court voided the judicial justification for a date-of-publication change after March 14, La Follette’s attempt to change the date of publication on March 18 is without any legal basis.

(H/T – JSOnline’s All Politics blog)

The Legislative Fiscal Bureau has run the numbers on the current version of the FY2012-2013 budget, as put together by the Joint Finance Committee, and they are projecting something that has not been achieved in at least the last 16 years – a projected structural surplus in the succeeding budget. Of course, this assumes that, outside of already-mandated changes in both state and federal law, the situation that exists in FY2013 carries over to FY2014 and FY2015.

As a convenience, I’ve reproduced and somewhat expanded the bottom-line table, comparing the structural deficit (termed “General Fund Amounts Necessary for a Balanced Budget” in Table 6:

After a marathon session that lasted, including numerous breaks, nearly 9 hours, the Government Accountability Board certified a sufficient number of signatures against all three Democrat Senators against whom recall petitions were submitted for filing, setting up recall elections for all three, or at least primaries if more than one Democrat, one Republican, or one Constitution Party candidate files to run, on July 19, one week later than the same for the 6 targeted Republican state Senators. By and large, the Board rejected Democrat attempts to toss signatures gathered by several out-of-state circulators based on what they termed “fraud”, as the Milwaukee Journal Sentinel reports that, in addition to the individual challenges recommended by GAB staff, a grand total of about 230 signatures collected by one of the circulators in question would not count.

The final number of certified signatures against the three Democrat Senators, per WisPolitics, are 15,540 signatures for the recall of Dave Hansen (D-Green Bay), 19,255 for the recall of Jim Holperin (D-Conover) and 17,138 for the recall of Bob Wirch (D-Pleasant Prairie). Each is more than the number required, which was 13,852 for Hansen, 15,960 for Holperin, and 13,537 for Wirch.

It is unknown whether the Democrats will follow the six targeted Republicans into court in an attempt to stop the recall, but they do have until next week Thursday to do so. The Wisconsin State Journal reported that Republican Senators Alberta Darling (R-River Hills), Shelia Harsdorf (R-River Falls) and Robert Cowles (R-Green Bay) filed suits yesterday to do just that, joining Dan Kapanke (R-La Crosse), Randy Hopper (R-Fond du Lac) and Luther Olsen (R-Ripon), who filed last week. As of yesterday, no date had been set in any of hte 6 Republican cases.

Meanwhile, the Republican Party of Wisconsin is lining up “protest ‘Democrat'” candidates to run in all 6 districts where Republicans are targeted in order to stretch the recall election itself to August 9, 4 weeks after the July 12 election date set for the 6 Republicans. This has the Democrats, who in Wisconsin had one of their operatives run as a “Republican” in a failed attempt to squeeze newly-independent Assemblyman Bob Ziegelbauer out of office last year, and nationally have with varying degrees of success encouraged third-party runs in attempts to seize Republican-held seats, crying “foul”. A minor point of order for those of you not in Wisconsin – the parties do not control any aspect of the primary process. They can neither get a candidate placed on the ballot automatically (outside of a recall situation where the incumbent is automatically on the ballot) nor prohibit a candidate from running for or holding office as a “member” of their party.

Revisions/extensions (7:14 pm 6/8/2011) – Speaking of Hopper, one of the main reasons he’s in particular trouble in a district that should be a safe Republican one is that he left his wife for a live-in girlfriend, but forgot to finalize the divorce before the recall circulators showed up at his soon-to-be-ex’s door. I agree with James Wigderson that the RPW needs to cut its ties with him, but they should do it in a primary just in case he forgets to declare himself a non-candidate. If memory serves, that 10-day deadline, along with the 4-week filing deadline for ballot access in the election, is fast approaching.

R&E part 2 (7:18 am 6/9/2011) – The MacIver News Service has a lengthier report of the hearing, including a tidbit on the telemarketing firm hired by the Dems to establish their “fraud” case that I had not known. Several Brown County residents had filed suit after the firm had called them multiple times, with the suit dismissed only after the calls had stopped.

That also leads me to another flashback – the same firm usurped the good name of a Green Bay medical facility in its first several hundred calls.

Waukesha County has filed its certified recount numbers with the Government Accountability Board, while Iowa County snuck in a revised set of certified numbers a bit before that point. With all 3,602 reporting units recounted, the Milwaukee Journal Sentinel is reporting Justice David Prosser has beaten challenger JoAnne Kloppenburg by 7,006 votes, 310 votes less than the pre-recount 7,316-vote margin. The Associated Press (via WLUK-TV) has the totals as Proser 752,697, Kloppenburg 745,691. Final numbers from the GAB are not yet available, however; therefore, I don’t have an updated spreadsheet just yet.

The Journal Sentinel further reports that, since the GAB expects to certify the results on Monday, Kloppenburg will have until May 31 to file a judicial appeal, which will be heard by a reserve (retired or defeated for re-election) judge of Chief Justice Shirley Abrahamson’s choosing. Kloppenburg’s campaign says that decision will come after they review the evidence, while Prosser’s campaign issued a statement that said it was not warranted. Quoting from the statement, “As an attorney, Ms. Kloppenburg would know she has a ‘right’ to go to court, and as an attorney she should recognize it’s not the right thing do.”

The reason Iowa County revised their canvass was they were informed by the GAB that 4 ballots, all for Kloppenburg, were “improperly rejected” by the board for not having proper signatures. According to the GAB, ballots lacking proper signatures can only be rejected if either there were more ballots than voters or the issue was uncovered in absentee reconciliation. Since neither happened, Kloppenburg was awarded those 4 votes.

Revisions/extensions (9:25 pm 5/20/2011) – The GAB has released the certified Waukesha County numbers. However, I have not updated my spreadsheet after reviewing both the daily tracking spreadsheet and the various county-certified spreadsheets. In a few other counties, there are still some unexplained differences between the daily tracking spreadsheet, the county-certified spreadsheets, and the minutes from the recount, where only two of three were the same. Notably, not all of the differences were between the daily tracking spreadsheet and the minutes.

In sum, the differences don’t change Prosser’s margin of victory much. If one uses the numbers from the county-certified spreadsheets found on the county-by-county certified numbers/minutes page, Prosser’s margin of victory changes to 7,004. If one adjusts the numbers from the county-by-county certified numbers page for the instances where the canvass and minutes (where available) do not agree by substituting the numbers from the minutes (and the daily tracking spreadsheet) for the numbers on the certified spreadsheets, Proser’s margin of victory changes to 7,005.

It’s too late for me to update the spreadsheet tonight to reflect any of this. I should have it up tomorrow.

R&E part 2 (6:48 am 5/21/2011) – Typo corrected; thanks to DINORightMarie for the catch.