Thursday, March 31, 2011

Wisconsin Injunction: Good, But Not Good Enough, Your Honor!

From this morning's STrib:
A spokesman for Republican Assembly Speaker Jeff Fitzgerald said he had nothing new to say beyond his previous statement that he didn't believe the judge had the authority to interject herself into the affairs of the Legislature given the separation of powers.
With respect to your clarification, your honor, Republicans understood your order.

They don't care.

Republicans have flipped you the proverbial bird, they willfully have flouted your order.

You did not go far enough, your honor.  Again, with respect, if you do not make it clear that there will be consequences for those actions, if you do not make it clear that law is what rules not Republicans, if you do not at least WARN them they can be held in contempt, they will continue despite this clarification.

Republicans have consistently made it clear, they will run roughshod over law, over due process, and over transparency. They have no interest in representing the citizens of Wisconsin. They are acting only to serve the corporate interests that seek to exploit the state of Wisconsin.Your honor, I applaud you making it clear that this law was not properly published and is not in effect.Your honor, I applaud you making it clear that this law was not properly published and is not in effect.

Don't believe me, your honor? Read the papers.
Wis. GOP signals it may ignore judge's warning, press on with divisive union bargaining law
By SCOTT BAUER , Associated Press

MADISON, Wis. - Wisconsin's Republican leaders appear to be taking the same confident and bullish approach to implementing their divisive collective bargaining law that they took to passing it, suggesting they may ignore a judge's warning there would be consequences for moving ahead while challenges to the law are pending.

"It's dangerous. Arguably they're in contempt of court already," University of Wisconsin law professor Howard Schweber said Wednesday, referring to preparations under way by Walker's administration to begin deducting more money from most public employees' paychecks for health and pension plan costs and to stop deducting union dues.
"I cannot understand the legal rationale of attorneys who are apparently advising this administration to ignore this order for whatever reason," Democratic Sheboygan County District Attorney Joe DeCecco said Wednesday. "The very fabric of a just society is based on the rule of law. We don't have the option of which law we will obey and we don't have the option of which court order we'll ignore."

The Republicans are walking a political fine line by moving ahead as if the law is in effect while apparently defying the court, said Charles Franklin, a University of Wisconsin-Madison political science professor.

"They naturally want to continue to support their side of the argument, but I think they run the risk of making this look like a claim to being able to do whatever they want regardless," Franklin said. "At some point strength starts to look like arrogance."


Republicans are acting as if the only authority they recognize is force.  I will be surprised if anything less than an order employing force suffices.  Professor Franklin, they stopped looking strong, and were clearly arrogant some time ago.  Try to keep up with events.

One can only surmise their corporate masters are cracking the money whip a little harder on the backs and the behinds of Wisconsin Republicans...  they hate any impediments to raking in all the money they can get their greedy, dirty little hands on.

15 comments:

  1. Why would you POSSIBLY think that they (the Republican leadership) aren't aware of the ability of the court to hold them in contempt? Do you believe they are stupid?

    Their position is very clear, as was the order from the judge. They don't believe the judge has the authority, she believes she does. Clearly the court has ability to invalidate legislative action, that's it's entire purpose when talking about "separation of powers." Clearly they don't care, but frankly, pretty obviously they'll be held to account and told to stop. The AG in the state will make it clear. The commment from the republican leadership is, at best, grandstanding while they hope to appeal.

    That said, your focus, that the jduge didn't go far enough, is off the mark. She made her point, they understand the process and lecturing them about contempt (or her) is silly.

    ReplyDelete
  2. That’s the problem with activist judges which by definition means any judge that issues a ruling against you.

    IMO Speaker Fitzgerald is actually attacking the co-equal three branched system of American government … and Mr. Fitzgerald could end up being the victor. Oh, sure the Judge may rule against the legislation, but the Judge could face the consequences at the ballot box. I trust that you are aware that last November, the Iowa voters removed three Iowa Supreme Court Justices via the ballot box for their ruling that a ban on same-sex marriage was unconstitutional. There was an intensive campaign against the judges which was funded in part by corporate interests who did not like some of their other rulings.

    BTW, legislatures enacting laws that are unconstitutional happens all the time … just yesterday, a committee in Ohio’s state legislature approved HB 125. Ohio Right to Life, the state's leading anti-abortion group, urged lawmakers to oppose the bill, saying it was legally flawed and could backfire. Before voting to support the bill, Republican Todd McKenney, a lawyer from New Franklin Ohio, said he did not think the legislation was constitutional. Supporters and opponents of the bill agreed the bill is unconstitutional and likely to be struck down by the courts. House Bill 125 would outlaw abortions if a fetal heartbeat can be medically detected, generally six to seven weeks into a woman's pregnancy. The question of incest, rape or viability is inconsequential to the Republican majority that offered the legislation.

    And speaking of Ohio, Tim Pawlenty went there yesterday and praised Governor John Kasich and the state legislature for SB 5 … the Ohio law that attacks collective bargaining. Mr. Kasich plans to sign the law … but first had to send out a fund-raising email.

    ReplyDelete
  3. Pen wrote:
    "Why would you POSSIBLY think that they (the Republican leadership) aren't aware of the ability of the court to hold them in contempt? Do you believe they are stupid?"

    No, I believe they are that arrogant. But more to the point, when I originally wrote this post earlier this morning, in the first version of the story that is linked to the STrib, the story was that the GOP WAS DEFYING the court.

    So, I didn't 'make it up' or 'just get it wrong'.

    That story changed quite dramatically later in the morning, after the post was published, so I tried to update it accordingly to reflect the changes in the STrib article.

    NOW, some of the GOP are 'unofficially' claiming they will obey the court, while others - like the source for the head of the state senate I quoted - are continuing to claim they WILL defy the court oder, on the position the court lacks jurisdiction.

    The Republican AG in the state initially took the side of the GOP in supporting them defying the judge - another reason to write this story.

    I believe what is important here is following the money trail. THAT is, imho, the pressure which is pushing the GOP to push this through in the way they are, rather than letting it take its course through the courts.

    The arrogant grandstanding, as you call it, is just the cover to them responding to that pressure from their money source.

    I am positing that without more than threats there will be consequences, I think there will be a push from those behind the GOP for further defiance of the court, and that only a stronger response from those courts will stop this kind of thing from continuing.

    It is also a set up to the next piece I'm in the process of writing.

    Hope that clarifies why I wrote this ...and that explaining the changes it went through in the process makes it more reasonable to readers.

    ReplyDelete
  4. I disagree, what you wrote was,

    "With respect to your clarification, your honor, Republicans understood your order.

    They don't care.

    Republicans have flipped you the proverbial bird, they willfully have flouted your order.

    You did not go far enough, your honor. Again, with respect, if you do not make it clear that there will be consequences for those actions, if you do not make it clear that law is what rules not Republicans, if you do not at least WARN them they can be held in contempt, they will continue despite this clarification."

    You indicate they need clarification that they'll be held in contempt, which implies, almost without possible denial that they FAIL to understand they'll be held in contempt. She needs to clarify nothing, they know they can be, she needs to do nothing, they know they most likely WILL be if they defy her order, she needs to clarify nothing. My point is that she needs to do nothing, she made the correct ruling, they are ignoring it, and NOTHING she says will make that different. They will ultimately comply, they are grandstanding, but nothing she says will make it any more clear. Until she DOES hold them in contempt, until she places a further order, they are bound by this one and they know it.

    You weren't accused of making anything up, you were accused of making a needless request, and of making it the focus of your post. The judge did her job.

    ReplyDelete
  5. I will respectfully disagree dear colleague; she issued a follow up order this morning, addressing the Republicans flouting of her earlier order.

    I wrote this before that second order hit the press; however, it is not official yet that the Republicans are complying with her order, there are only rumors they will do so after she did exactly what I advocated - at least warn them of consequences, and then act if they continue to flout her order.

    I give it 50 / 50 which way they go, despite the rumors of compliance.

    ReplyDelete
  6. I saw what you wrote and the second order. The second order didnt' say "Or you'll be in contempt" it said quite clearly, you must stop implementing immediately.

    ReplyDelete
  7. Actually, she said, in her second order that if the Republicans did not comply, "there would be consequences".

    Does that specify contempt? No, although that is a reasonable assumption given the quotes from law professors, etc. in the other stories.

    I believe that is consistent with where I wrote in the original version of the post which is still included in this revision:
    "Again, with respect, if you do not make it clear that there will be consequences for those actions, if you do not make it clear that law is what rules not Republicans, if you do not at least WARN them they can be held in contempt, they will continue despite this clarification."

    and
    "It's dangerous. Arguably they're in contempt of court already," University of Wisconsin law professor Howard Schweber said Wednesday, "

    I don't think I have over reached the substance of the story here, but I will respect that this might be one of those instances where we agree to disagree.

    ReplyDelete
  8. No, we don't.

    You said she needed to clarify her order regarding consequences, I claimed that's absurd - because they already undrerstand that - you agree they understand - so there is NO need for her to clarify (imho).

    She did her job fine, her second order clarified timing and she reinforced that there's no "kidding around" here, but that's already clear, judicial rulings aren't jokes.

    The issue here ISN'T the judge, which the title of your post makes it appear to be what YOUR post is about. The issue is that this judge did exactly what her role is supposed to be, she ruled on the constitutionality of conduct by the executive and legislative branches. The Law and Order Republicans chose to ignore her order and to pretend she didn't have the authority whcih is utter nonsense, further, her "activism" was in doing exactly what they have said they expect judges to do, meanning to rule on constitutionality rather than providing an interpretation of what IS constitutional (a stupid as hell premise, the court isn't a traffic light) - but regardless that's what she did and the STILL ignored it. Clearly the issue is THEIR conduct, not hers and suggestions otherwise needless sidetrack the discussion. This isnt' about agreeing to disageree, it's about objecting to blaming her for not being clear. She doesn't need to clarify there will be sanctions - she (apparently) WANTED to be clear the impact is immediate.

    ReplyDelete
  9. FYI : Suggested reading OpEd from the Madison newspaper ... you be the judge if this is an April's Fools joke ...

    ReplyDelete
  10. Just curious but how is this any different than the federal judge in Florida that found the healthcare law unconstitutional and ordered the administration to stop implementing it until the Supreme Court could rule on it? The last I heard the Obama administration was acting like his order had no effect.

    ReplyDelete
  11. Ttuck, if you can show a specific instance where the Obama administration has acted illegally, I'd like to see it. Otherwise the 'you heard' they are doing so sounds to me like a lot of what I hear from the right that doesn't fact check out to be correct.

    As in my most recent factcheck.org post on the subject of health care reform among other topics.

    As to court rulings, there have been four rulings, two four and two against the Obama administration, from courts which are equal in authority, and which have made what appear to be contradictory findings.

    Above and beyond those four that have opposite findings are the dozen or so court rulings on specific aspects which have found the legislation to be legal.

    I haven't found a ruling in that one case that was the 4th point in contention that was still being argued that we posted here as a correction from January, but 3 out of the 4 claims had been pretty definitively found to have failed, comprising the approximately dozen cases to that point.

    If you can show me even one comparable ruling to the decision by this very respected jurist in Wisconsin which Minnesota Central so correctly points out has been threatened by the Dane County Republican Thugs who comprise their party, I'd like to see it.

    If you can show me any decisions being flouted by Obama which are comparably clear, I'd also appreciate it.

    The Supreme Court can rule on this any time they like - and if and when they do, I hope that it will be without the apparent conflict of interest that is represented by Justice Thomas, whose ethics to participate in this decision are dubious at best.

    I'm fairly confident you cannot do what I have asked, Tuck. That you cannot is in stark contrast.

    In the meantime, I understand the first of the recalls of the Wisconsin legislators has moved to the next stage. I don't think it will be much longer before the Wisconsin senate begins to no longer a Republican majority, and not much longer after that before Walker will be recalled as well.

    Tuesday, it is probable that the Wisconsin State Supreme court is going to change composition as well, as the citizens of Wisconsin make clear just how much they hate the Republican policies and agenda - because the conservatives won't listen, and don't think very clearly, and are not reality OR fact based.

    Tuck, you are one of those people Republican policies will shift the burden for revenue to, while giving a free pass to business.

    All in the name of jobs that those businesses subsequently fail to provide.

    But that is an upcoming post.

    ReplyDelete
  12. Ttuck,

    I am not a lawyer ... nor even play one on TV ... but I think that the two court actions are entirely different.

    Regarding the healthcare ruling, Judge Roger Vinson did not issue an injunction specifically commanding the Obama administration to immediately halt all efforts to implement health-care reform ... many times judges assume that an appeal will be launched immediately ... in this case, DOJ took more time than he may have anticipated but in early March, Judge Vinson issued a stay under the condition that government lawyers seek an expedited appeal of Judge Vinson’s ruling either to the 11th US Circuit Court of Appeals in Atlanta or directly to the US Supreme Court.

    My interpretation of the Wisconsin case is that the Judge said stop until she rules on the case ... this should be a standard practice.

    IMO, these are two different actions ... apples and oranges may both be fruits, but there is a difference.

    ReplyDelete
  13. Oh goodie, I can join in where I tried posting yesterday, but google ate my comment.

    I am a lawyer and Minnesota Central is correct that we have two different actions here.

    The REAL issue is that it is becoming the fashion for political questions to enter into the Court System in the United States. There are several reasons for this, but a major one occurs is where Judges are elected. This is less troubling in the Federal system, but since Judicial Appointments are now becoming political fodder, that may no loner be true.

    Minnesota Central and I are also in agreement about what defines an activist judge, as being one who rules against someone--even if they have the proper legal argument.

    My "recreated" comment has changed somewhat, but I still find US politics to be confusing. There is a lot of talk about "democracy" but the system appears very undemocratic and contrary to the rule of law.

    The US should ponder the word of Patrick Henry when it invokes the spirit of the founders into current politics:
    This brought on the war which finally separated the two countries, and gave independence to ours. Whether this will prove a blessing or a curse, will depend upon the use our people make of the blessings which a gracious God had bestowed upon us. If they are wise, they will be great and happy. If they are of a contrary character, they will be miserable. Righteousness alone can exalt them as a nation.

    ReplyDelete
  14. The sidebar to the collective bargaining legislation ( I did not say law, since it may be ruled unconstitutional) is the April 5th election for a seat on the Wisconsin Supreme Court … Justice David Prosser is up for re-election to the Court against Asst. Attorney General JoAnne Kloppenburg.
    While this should only be of interest to Wisconsin voters, the race has been deemed worthy of a tweet from Governor Sarah Palin (R-AK) : Wisconsin, please remember to vote for Justice Prosser on April 5. Visit his website here: http://www.justiceprosser.com/ 9:36 PM Mar 31st via web.

    I personally don’t know much about the candidates … but maybe Sarah in Wasilla does … I just hope that she read the newspaper article entitled : Supreme Court tensions boil over - Prosser says he was goaded into insulting chief justice … it’s a quick read and I was hooked when I read Justice David Prosser exploded at Chief Justice Shirley Abrahamson behind closed doors, calling her a "bitch" and threatening to "destroy" her.

    What I do know is that I am very concerned with the amount of money coming into judicial elections … I support Governor Al Quie's (R-MN) proposal for incumbent justices to face an up-or-down retention elections as opposed to a candidate campaigning for the office. I don’t know how many justices assume the bench via the election process (Supreme Court Justice Alan Page did) but I was concerned when a number of candidates accompanied the Republicans on a bus tour of cities last year. They all lost, but the association so closely to the political party is a concern.

    More information about Minnesota's judicial elections and the proposal for retention elections may be found here.

    Laci, I would appreciate your thoughts.

    ReplyDelete