"Do or Do not. There is no try."

The Wisconsin Supreme Court Crisis – Far More Serious Than Ruling On Walker’s Anti-Collective Bargaining Law

Yesterday, the Wisconsin Supreme Court, in a 4-3 ruling, overturned the lower court decision that had barred implementation of Scott Walker’s anti-collective bargaining law on procedural grounds.

While Walker’s law will now take effect, this is the least of the problems revealed by the high court’s ruling.

After all, the anti-collective bargaining legislation was going to become law, one way or another. Had the Supreme Court affirmed the lower court ban and struck down the law, Walker would have simply included the legislation in his new budget and pushed it through once again. Only this time, there would not have been the procedural snafu that has left the legislation hanging in limbo as it worked its way through the state court system.

However, the decision of the Wisconsin Supreme Court revealed something far more shocking than the ruling which went against the supporters of collective bargaining. It revealed, by way of written opinion, a now ‘out in the open’ battle between the members of the court wherein the minority opinion bluntly and directly accused the majority of fudging the facts to reach the decision they had already determined they wanted to reach. The minority opinion further alleged that the majority was driven by political motives rather than the desire to deliver a fair and judicious opinion.

In the world of the law, this is beyond huge. This is gargantuan.

Of course, it is no secret that high courts will, from time to time, give us reason to believe that politics might be at work. However, members of such a court use extraordinary care and caution to avoid calling out a fellow justice for doing what is considered the unthinkable.

The notion that a minority opinion would level a charge of judicial cheating against brother and sister members of the court, in an opinion that will now become part of the Wisconsin judicial body of legal authority, is positively remarkable. I’ve read more cases in my life than I could possibly count and never-and I mean never- has anything I’ve seen so much as approached what I read in this case.

And the fact that these charges were leveled in an opinion concurring with the minority written by the Chief Justice of the Court just makes this all the more astounding.

In a fiery dissent, Supreme Court Chief Justice Shirley Abrahamson wrote that justices hastily reached the decision and the majority “set forth their own version of facts without evidence. They should not engage in this disinformation.”

Abrahamson also said a concurring opinion written by Justice David Prosser, a former Republican speaker of the Assembly, was “long on rhetoric and long on story-telling that appears to have a partisan slant.”Via Huffington Post

Astounding. Truly ‘jaw dropping’, mouth gaping, astounding.

When the Chief Justice of the highest court in the state feels moved to accuse those in the majority of recreating the facts to meet a desired decision, this is a court that is inextraordinary crisis.

And if Chief Justice Abrahamson is correct in her assessment, Wisconsin now finds itself in a period where their highest court decisions can no longer be relied upon when assessing the law.

Every state in the nation – with the exception of Louisiana who retains its roots in the French Napoleonic system- bases its law in the concept of stare decisis. This means that when the court makes law through their decisions, other courts will strive to remain consistent with that law by following the judicial precedents set so that people will never find themselves confused as to the likely outcome of their actions.

This is why changes in American law – other than those brought about by legislation- happen very, very slowly. Consistency in the law is one of the fundamental goals of our system.

However, when the Chief Justice of the State’s highest court accuses the majority of highly unethical behavior and political motives when making law, and does so in the writings found in a decision of the court, there is no court in the state – nor citizen seeking to follow the laws of the state – who can give credence and credibility to the high court’s rulings. Every ruling of the Wisconsin Supreme Court, so long as it is composed of its current Justices, will result in precedents that are instantly suspect due to the charges that have been levied by members of the court.

While the State of Wisconsin has a lot on its plate in the recall department, I’m afraid they now have little choice but to consider taking a look at some of their Supreme Court Justices for similar action.

Not because the court handed down a ruling that will make people unhappy – but because the people of Wisconsin now have every reason to believe that their Supreme Court has been corrupted and their opinions subject to invalidation.

Make no mistake. This is not about a judicial philosophy with which I might disagree. Reasonable, learned judges can – and often do – apply the law to a fact situation and come up with different opinions and they do so in the utmost of good faith and their best understanding of the law.

However, the minority opinion issued yesterday in the Wisconsin Supreme Court did not charge mistaken application of law. The opinion charged perversion of the facts and the law to meet a desired result.

If this is true, this is court corruption at its absolute worst and the people of Wisconsin cannot permit this to stand.


By: Rick Ungar, The Policy Page, Forbes, June 15, 2011

June 15, 2011 Posted by | Class Warfare, Collective Bargaining, Conservatives, Democracy, Elections, GOP, Gov Scott Walker, Government, Ideologues, Ideology, Politics, Public Employees, Republicans, Right Wing, States, Union Busting, Unions, Voters, Wisconsin, Wisconsin Republicans | , , , , , , , , | Leave a comment

Thousands Protest at Capitol Against Walker Budget, Supreme Court Ruling

Crowds of protesters who flocked to the Wisconsin state Capitol June 14 anticipating Assembly action on the divisive collective bargaining bill, which essentially eliminates collective bargaining for public workers, were shocked to learn the Supreme Court had reinstated the law in a hotly contested 4-3 decision.

Speakers at a planned 5:00 p.m. rally were quick to lift the faltering spirits of the Wisconsin Democracy Movement. Mahlon Mitchell, president of the Professional Fire Fighters of Wisconsin, told the crowd of thousands, “We’re going to be here every day. We didn’t pick this fight, but if it’s a fight they want, it’s a fight they’re going to get.”

Mary Bell, a middle school English teacher from Wisconsin Rapids serving as president of the Wisconsin Education Association Council, urged protestors to hold Republican legislators accountable for their actions by voting in various recall elections across the state.

“This extreme agenda has to be seen for what it is and what it does to our Wisconsin values. Change begins when we stand up and speak out for what we believe in,” Bell said.

Republicans Signal Approaching Court Ruling, File Fake Candidates

The 4-3 ruling reflected the sharp conservative-liberal divide that many believed would determine the outcome of the Court’s decision. In her dissent, Chief Justice Shirley Abrahamson attacked the implicit “partisan slant” in Justice Prosser’s concurrence and the shaky rhetorical foundation of the majority opinion.

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

The timing of the decision surprised those who had been keeping an eye on collective bargaining proceedings. Assembly Speaker Jeff Fitzgerald announced just yesterday that comittee hearings would be held Tuesday on the collective bargaining proposal, and that his Republican caucus was prepared to vote on it irregardless of a Supreme Court decision. The hearings were delayed several times throughout the day, raising a few eyebrows at the Capitol despite Fitzgerald’s categorical denial of any wrongdoing or insider information.

Some protesters did in fact speculate that not all is as it seems.

“The way they passed the budget bill initially was wrong, and the fact they did this behind closed doors is wrong,” said Sarah Fuelleman, a writer at the University of Wisconsin-Madison Department of Ophthalmology, adding, “I’m not a conspiracy theorist, but I’m starting to become one.”

Lauren Schmidt, a 22-year-old home health care worker from Madison, didn’t mince words.

“I think its horseshit,” she said, before joining a contingent of protesters screaming and blowing vuvuzelas outside the window of Rep. Stephen Nass’s office, where the Republican lawmaker quietly ignored, and at times playfully provoked, impassioned Walkervillians.

Tuesday’s other big piece of news — that Republicans officially filed “fake Democrat” candidates in six Democratic primaries for the upcoming recall elections — didn’t come as much of a surprise. Republicans have openly admitted their intention of delaying the elections by fielding puppet candidates, but have been less forthcoming about the tactic’s collateral damage. According to a Milwaukee Journal Sentinel investigation, the GOP plan would cost taxpayers upward of $428,000.

Budget Cuts Start to Hurt

Teachers, steel workers, firefighters, and other union workers began their Capitol Square march at 11:00 a.m., hoisting signs that read “Recall Walker” and “RIP Democracy.”  Many expressed concern that various budget provisions would leave their families reeling financially.

Stacy Farasha Rhoads, adance instructor from Milwaukee who wore an all pink outfit to symbolize her opposition to proposed Planned Parenthood Cuts, worried that her two children, one of whom is autistic, would suffer from reduced funding for state-provided health services.

“I’m a single mother. I’ve got two children who are on Badgercare and I have a daughter with special needs. So all of the services that my family needs on a regular basis are under attack,” said Rhoads.

Rhoads marched in solidarity with other parents and families anticipating economic hardship, such as Chris Breihan, a part time teacher at Milwaukee Area Technical College. Proposed cuts to Family Care threaten to prevent her 21-year-old special needs son from attending an adult day services program recently recommended to him.

The mood was relaxed for most of the day, as Assembly Democrats and Republicans spent the majority of the afternoon behind closed doors at party caucus meetings. At a midday press conference, Representative Peter Barca and his Democratic caucus announced their intention to offer “a couple dozen” amendments to Governor Walker’s proposed budget, as part of their effort to push back against budget cuts targeting working class families.

At the end of the rally, firefighters led protesters in a “hands around the Capitol,” ceremony. The Beatles’ “Revolution,” written in response to the anti-war protests of the late 1960s, blared from event loudspeakers as pro-union activists took their places along the square. Hand in hand, the group sang a Sconnified version of “We Shall Overcome,” signaling their intent to keep fighting back against Governor Walker’s anti-middle class agenda.

Debora Marks, a 1st grade teacher at Lindbergh elementary, vowed to keep returning to Walkerville for “as long as it takes.” The frequent trips to the Capitol haven’t, however, distracted her from what she considers her top priority.

“My job is about something far more important than Scott Walker: its about educating future generations, and that’s something teachers can not stop doing, whether the Governor wants us to or not,” said Marks.


By: Eric Carlson, Center for Media and Democracy, June 15, 2011

June 15, 2011 Posted by | Class Warfare, Collective Bargaining, Conservatives, Democracy, Elections, GOP, Gov Scott Walker, Government, Governors, Ideologues, Ideology, Lawmakers, Middle Class, Planned Parenthood, Politics, Public Employees, Republicans, Right Wing, State Legislatures, States, Union Busting, Unions, Wisconsin, Wisconsin Republicans | , , , , , , , , , , , , | Leave a comment

Democracy On Trial: Wisconsin Supreme Court Recount Begins

The recount in Wisconsin’s Supreme Court race begins this Wednesday, April 27. Why was the recount called, how will it be carried out, and how can individuals get involved?

The Why

A recount was expected after the final, unofficial vote count showed Kloppenburg winning by 204 votes. Governor Scott Walker implied as much when he told the Associated Press “[t]he overriding principle has got to be that every vote that was legally cast in Wisconsin needs to be counted.”

The landscape shifted two days after the election when Waukesha County Clerk Kathy Nickolaus, a Republican activist in the state’s most conservative county, announced she inadvertently missed 14,000 votes, giving the conservative Justice Prosser a lead of more than 7,500 votes. This eleventh-hour announcement by someone who once worked for Prosser led many to question the integrity of Wisconsin’s elections, and Congresswoman Tammy Baldwin asked the U.S. Department of Justice to investigate.

The election was marked by other problems. The director of the state elections board, Kevin Kennedy, significantly miscalculated public interest in the election, predicting a turnout of 20 percent when the actual turnout topped 33 percent statewide and in some areas was as high as 54 percent. Wards around the state ran out of ballots and resorted to using photocopies or requiring all voters to use a single touch-screen machine normally reserved for persons with disabilities. While no voters were turned away, long lines may have deterred some potential voters, and photocopied or otherwise improvised ballots can give rise to challenges.

Even if Prosser’s lead will be difficult to overcome, Kloppenurg said she called for the recount because:

“Wisconsin residents must have full confidence that these election results are legitimate and that this election was fair. A recount will establish where votes were incorrectly tabulated and expose if irregularities compromised the electoral process. A recount may change the outcome of this election or it may confirm it. But when it is done, a recount will have shone necessary and appropriate light on an election which, right now, seems to many people, suspect.”

Additionally, Kloppenburg’s campaign asked the state elections board to appoint an independent investigator to look into potential misconduct surrounding the uncounted Waukesha County votes, citing County Clerk Nickolaus’ partisan affiliations and history of incompetence, and noting that right-wing media outlets reported the changed results before Nickolaus’ April 7 press conference. Kloppenburg may be requesting an independent investigation because Kevin Kennedy rushed to the defense of Nickolaus, issuing a statement expressing “confidence in Wisconsin’s county and municipal clerks,” before he had a chance to investigate the issue and even while admitting that he himself was not informed of the problems with the Waukesha count prior to the press conference held by Nickolaus.

The complaint also alleges that Prosser had a meeting with Governor Walker on April 6, one day after the election (and one day before the Waukesha votes were announced), and that Governor Walker commented on April 6 that there might be “ballots somewhere, somehow found out of the blue that weren’t counted before.” Both Walker and Prosser have denied there was such a meeting.

The How

Because Justice Prosser’s margin of victory was within ½ of one percent after statewide canvassing, Wisconsin law provides for a recount should a candidate request one.  All counties will count simultaneously, with participants likely working through the weekends in order to finish by the May 9 completion date. See the recount manual for more information.

The Milwaukee Journal-Sentinel sets the scene:

An indoor sports arena is filled with poll workers from every municipality in Milwaukee County, each in their own area. At each station, poll workers examine and count ballots one by one. And as they count, campaign volunteers, attorneys and journalists watch their every move – with the campaign representatives sometimes challenging the poll workers’ decisions – while sheriff’s deputies stand guard.

The Journal-Sentinel also reports that “Prosser attorney Jim Troupis has already said the incumbent’s campaign would have hundreds of volunteers, including some flying in from around the country, to monitor the recounts.” Prosser had initially hired the DC lawyer who represented George W. Bush during the infamous 2000 Florida recount that made “W” president, but has apparently replaced him with Troupis, the go-to election lawyer for Wisconsin Republicans. In the past year Troupis has represented Americans for Prosperity in a challenge to fair election rules, legislative Republicans in redistricting efforts, and Club for Growth in a case to compel Senate Democrats back into the state. (See OneWisconsinNow’s 2009 Troupis bio here). He also sits on the Board of Directors of the right-wing, Koch-connected thinktank MacIver Institute.

Kloppenburg initially hired attorneys who represented now-Senator Al Franken in his successful Minnesota recount, but has since retained the Madison firm Cullen, Weston, Pines & Bach.

Both Candidates Are Looking for Volunteers and Donations

Both campaigns are seeking volunteers to aid with the recount. The “Kloppenburg for Justice” facebook page has information on who lawyers and other potential volunteers can email to get involved, and Justice Prosser’s “Recount for Victory” website has a volunteer signup sheet.

Observers can watch for lapses in procedure and challenge the decisions of the canvassers if the intent of the voter becomes an issue on any specific ballot. Even in the wards where optical scanners will be used, the ballots will be visually inspected before they are fed to the machine, and observers can verify the machine total.

Although the state will pay for most of the costs associated with the recount, it will not pay lawyers’ fees, and public funding for campaigns no longer applies. Both candidates are accepting donations for what may be substantial lawyers’ fees; according to Justice Prosser’s “Victory Recount Fund” site, “donations are unlimited,” but corporate donations will not be accepted, possibly to avoid conflict-of-interest issues if a case involving a donor comes before the Supreme Court.

By: Brendan Fischer, Center for Media and Democracy, April 26, 2011

April 26, 2011 Posted by | Democracy, Elections, Politics, Wisconsin, Wisconsin Republicans | , , , , , , | 1 Comment

Wisconsin Supreme Court Election Needs Fraud Investigation

Partisans on both sides were ready to scream “fraud at polls” as the balloting wound down in Wisconsin in the recent state Supreme Court election.

Normally, the race would have been a snoozer. Incumbent Justice David Prosser, a former GOP state assembly speaker and failed congressional candidate, won 55 percent of the vote in the first round of balloting. His opponent, an ultra-liberal named Jo Anne Kloppenburg, ran a distant second. But that was before Wisconsin Republican Gov. Scott Walker proposed and won enactment of a series of reforms that change the rules for state government workers in a way that limited their collective bargaining power.

After that, the election was presented as a referendum on Walker’s reforms, one the unions opposed strongly, going so far as to occupy the state capitol building in an effort to block the legislature from doing its business.

Since the court will inevitably rule on the legality of Walker’s reforms, a victory by Kloppenburg would have been a major setback for the new governor since it would have shifted the 4-3 majority on the seven-member Supreme Court from 4-3 conservative to 4-3 liberal.

The morning after the election, the Associated Press was reporting Kloppenburg ahead by just over 200 votes, enough for her to declare victory, even though the margin was close enough to trigger an automatic recount. The GOP was concerned because the heavy presence of pro-union activists in the state from around the country may have been able to take advantage of weaknesses in the state’s election code to unfairly, perhaps even illegally, influence the election.

The GOP was ready to question the validity of the outcome when a reporting error in heavily-GOP Waukesha County was discovered that gave Prosser a lead of more than 7,000 votes.

Now it was the Democrats‘ turn to cry, “Foul!” and to raise the specter of vote fraud.

Both parties are right to be concerned. Elections in Wisconsin are a messy business, particularly because the state allows same-day registration on Election Day, and because of something known as “vouching,” in which voters who can prove who they are can attest to the identity of others seeking to vote.

Something needs to be done. It’s time for a bipartisan effort to look at the entire election. As the Wall Street Journal‘s John Fund wrote recently, “An independent investigation is called for, if for no other reason than to clear the air and to recommend procedures to ensure such errors don’t happen again. Just as many Wisconsin officials have ignored or downplayed evidence of vote fraud (see the Milwaukee Police Department’s 2008 detailed investigation) so too have sloppy election procedures been allowed to fester in some counties.”

He’s right. Too many people choose to look the other way when the issue of voter fraud is raised, especially if their party is the one that benefits. Elections are too important to not take these allegations seriously. Wisconsin has the reputation for being a “good government state.” If they want to keep it, Governor Walker should appoint an independent panel to review the election and use it as the basis for a set of electoral reforms that could be a model for the nation.

By: Peter Roff, U.S. News and World Report, April 11, 2011

April 12, 2011 Posted by | Democracy, Elections, Gov Scott Walker, Government, Governors, Politics, Public Employees, Republicans, Union Busting, Unions, Wisconsin, Wisconsin Republicans | , , , , , , , , , | Leave a comment

Wisconsin Supreme Court Election: Every Vote Must Be Counted

Many voters went to sleep in Wisconsin and thought they woke up in Florida on Friday after a “Republican activist” county clerk announced that she discovered an extra 14,315 votes in a hotly contested Supreme Court race. Not surprisingly, the votes went to the conservative candidate giving incumbent justice David Prosser a 7,500 lead over challenger Joanne Kloppenburg. Oddly, 7500 was the exact number of votes Prosser needed to avoid a statewide recount.

The Supreme Court race has garnered national attention as a proxy vote on Governor Scott Walker’s radical proposal to end collective bargaining in the state and cut a billion dollars from public schools.

Long Time Republican Apparatchik

The county clerk in question is long-time Republican apparatchik Kathy Nickolaus. Nickolaus got her start in GOP politics in 1995 when the Republican Speaker of the Assembly was – that’s right – David Prosser. She worked for Prosser’s Republican Assembly Caucus, one of four GOP and Democratic legislative groups that were shut down following a criminal investigation for illegal campaign activity on state time.

Nickolaus first came to public attention in 2001 when she was granted immunity from criminal prosecution in exchange for testimony against her bosses at the Assembly Caucus. The case resulted in unprecedented convictions of Democratic and Republican legislators on felony counts of misconduct in office and arranging for illegal campaign contributions. Both Democratic and Republican leaders were sentenced to jail time.

In the caucus, Nickolaus was the person who ran the numbers, creating databases for illegal donations, partisan mailings and the like. When she escaped criminal prosecution, she hightailed it to Waukesha where she ran for county clerk in the conservative county in 2002.

She later botched a 2006 vote and stirred controversy by placing the entire voting system on her own personal computer. Prompting the County Corporation Counsel to charge: “If she wants to keep everything secret, she probably can.”

On Thursday of this week, she called a press conference to announce the new vote totals that put Prosser over the top and blamed “human error.” She claimed that the canvass was a “open and transparent” process, yet she found the error at noon on Wednesday and sat on the information for 29 hours, not even telling top election officials at the Government Accountability Board. According to election observers, the issue of 14,315 additional votes from Brookfield was never discussed at the canvass. But, this information somehow made its way to right wing bloggers before her press conference.

Reaction Swift

Wisconsin Citizen Action has demanded that federal prosecutors step in, confiscate her computer and start an investigation. “In the current political climate in Wisconsin, only an investigation by a U.S. Attorney can be seen by all citizens of the state as independent and above politics,” said Robert Kraig.

The Kloppenburg campaign has demanded “a full explanation of how and why these 14,315 votes from an entire city were missed.” As part of the search for that explanation, the campaign plans to file open records requests for relevant documents.

Meanwhile, both Kloppenburg and Prosser have lawyered-up. Kloppenburg is being represented by Marc Elias, the attorney who handled Al Franken’s U.S. Senate recount fight in Minnesota. Prosser is being represented by Ben Ginsberg, who served as national counsel to former President George W. Bush’s campaigns in 2000 and 2004 and was central to the 2000 Florida recount.

Lessons from Bush v. Gore Florida Recount

The Florida 2000 recount is on the mind of many Wisconsin voters. The big lesson from the nightmarish “hanging-chads” recount “is that you need a total statewide recount. If you only recount select counties the perception is you are only selecting counties that favor you,” says Jay Heck, the head of Wisconsin Common Cause.

Heck issued a statement on Friday:

The incredible and almost unbelievable events of the last two days with regard to the reporting of votes in the City of Brookfield in Waukesha County in Tuesday’s election for the State Supreme Court warrant a full investigation by the Wisconsin Government Accountability Board, the U.S. Attorney for the Eastern District of Wisconsin, the Wisconsin Department of Justice and the District Attorney of Waukesha County. Furthermore, the Government Accountability should authorize and supervise a statewide recount of all ballots cast in Tuesday’s elections and such a recount should be funded by the State of Wisconsin.

Why so many parties? Because this is the same constellation of offices that investigated the 2002 caucus scandal, giving voters more confidence that the manner was being handled appropriately and in a bipartisan fashion.

If Wisconsin is not to irreparably harm its reputation as a functional and relatively noncorrupt state, many Cheeseheads believe that a statewide recount is a necessity.

By: Mary Bottari, Center for Media and Democracy, April 9, 2011

April 9, 2011 Posted by | Conservatives, Democracy, Democrats, GOP, Gov Scott Walker, Politics, Republicans, Right Wing, Voters, Wisconsin, Wisconsin Republicans | , , , , , , , , , , , , , | Leave a comment

%d bloggers like this: