March 30, 2011

"I find it disturbing that Judge Sumi issued this warning, which carries the threat of a Bar disciplinary referral."

"This is tantamount to the nuclear option, by putting attorney licenses to practice on the line. Such a warning necessarily is one-sided, since only the attorneys unhappy with a court's rulings would comment negatively.  Such a warning allows the winning side, so far the Democrats, to crow all day long about the court rulings, while muffling the ability of the Republicans to explain why such rulings were unjustified."

108 comments:

virgil xenophon said...

What did you expect from an obviously egocentric Stalinist lefty drunk with power and enraged by the fact that ANYONE--even the head of a co-equal branch--has the SHEER EFFRONTERY to fail to heed, indeed to have the absolute GALL to deign to challenge her judicial ukase..

Synova said...

Ukase is just about as cool a word I never heard before as nous.

;-)

Joe said...

I still can't figure out where she gets her authority in all this.

Also can't figure out why the state bothers dealing with her; just go to the supreme court and ask for an expedited hearing and get it over with.

Irene said...

Bar disciplinary referral?

Maybe we should step back and have a drink at the Leftist Cocktail Party.

traditionalguy said...

She is being a total bitch, sort of like the Chief Justice of Wisconsin. We always say that the most powerful person in America is a top level trial court judge. The facts in every case get set forever by those sneaky folks, unless the Appellate Court Judge makes up new facts to make his opinion better.

Pogo said...

And Democrats thought that GOPers requesting professor's e-mails was chilling free speech?

Ha ha ha.
Sumi shows how it's done.

Lyle said...

This is crazy and horrible. That judge might need to be disciplined actually.

PaulV said...

Where are all the Leftists who say they support free speech. Only free speech for theirs?

Coketown said...

Dang, Wisconsin. You're making Minnesota seem sane by comparison.

Tully said...

Only free speech for theirs?

Of course. Have you not been paying attention?

PaulV said...

More reasons that she should have recused herself. She is an embarrassment.

Canuck said...

I'm not a lawyer, but is she doing something unusual here?

I thought a case came before her court, and she's trying to figure out if the case has merit to continue.

Was her injunction unusual or unexpected? Can legal experts give us context here?

I think it's interesting that the executive branch of the government might not abide by the authority of the courts.

I've understood that when other branches of government by-pass the courts (or shut them down) it's usually called martial law. (Maryland, Taney, the Civil War, ect.)

John said...

Judge Sumi is a completely unqualified politically biased hack. Judge Sumi has neither judicial or personal integrity and rules based on personal political beliefs.

Steve said...

Again... Beware the precedent you set. You won't be on top forever ... or even for very long.

cubanbob said...

Under WI law can the legislature impeach and remove her?

WineSlob said...

For Sumi The Union Whore Looney
The Ominous Skies Turned All Gloomy
She Couldn’t Wreck the Fitzgeralds
With the Intellect of a Sparrow
And an Ego the Size of Gitche Gumee

Methadras said...

What grounds does a judge have to insinuate themselves into the legislative process to begin with.

Canuck said...

"What grounds does a judge have to insinuate themselves into the legislative process to begin with."

In the U.S. I thought it was Marbury vs. Madison?

Sofa King said...

I'm not a lawyer, but is she doing something unusual here?

It is highly unusual for a court to enjoin the executive branch from enacting a law. Enforcing the law, yes, if it is found to be unconstitutional. Enacting, no. I can't think of any example of this ever happening before.

Particularly so because the law is not likely to be successfully challenged on any constitutional grounds.

Sofa King said...

In the U.S. I thought it was Marbury vs. Madison?

Empowers the judiciary to enjoin enforcement of unconstitutional laws. Does not empower the judiciary to boss around the legislature. E.g. the court cannot compel the legislature to repeal an unconstitutional law, nor preemptively forbid them from passing it!

Canuck said...

"It is highly unusual for a court to enjoin the executive branch from enacting a law. Enforcing the law, yes, if it is found to be unconstitutional. Enacting, no. I can't think of any example of this ever happening before."

Interesting -- that does sound highly unusual. And the law she is ruling on is not in the Constitution.

I would have expected her to let the law go through after she heard the case, unless there was some sort of constituitonal issue.

PaulV said...

Marbury Vs. Madison concerned the Executive branch, not the legislature.
That is why SuMe is overreaching

Sofa King said...

P.S. That should have read "enjoin the legislature from enacting a law"

Canuck said...

Is there some newpaper article or something where the legal issues are spelled out for laypeople on this case?

I thought an injunction was typical until a case was heard, but it sounds like it's highly unusual.

Why did she agree to hear the case? What are the legal issues at stake?

Is anybody clearly breaking out the legal issues on the interwebs for non-lawyers?

Chip Ahoy said...

Will someone please pass me the burn ointment? I accidentally read the comments over there on Insurrection. Thoze guyz are harsher than even youz guyz.

chickelit said...

Interesting -- that does sound highly unusual. And the law she is ruling on is not in the Constitution.

Ergo Sumi impropter hoc...

(or something like that ;)

Mike said...

Are you all really that dim? She's issued a TRO. She said she has not ruled as to whether the law was passed ILLEGALLY but there is reason to believe it may have been (the open meetings law was clearly violated), thus the TRO. She also pleaded with Walker, Fitzgerald et. al. to just re vote the stupid thing! Why do you think they wont do that? Huh? Seems like a great solution. get it out of the courts. Give the 24 hour notice and re-vote. They wont because the know they don't now have the votes. ?????? get it? The Republican Party in Wisconsin is imploding and it's a joy to watch.

Bruce Hayden said...

I am a bit more sanguine about this than I think most are. She can only control the attorneys who have made appearances in the case, and it is not unprecedented that a judge try to cut down on the politicing by one side or the other during litigation.

The reason that it does look a little bad is that it does look a bit one sided. But, again, that isn't unprecedented.

The reality is that judges have a fair amount of power and discretion when trying cases. And, yes, sometimes it is abused. And, some judges abuse it a lot. But they do need it to make the system work.

Of course, I would be livid if I were one of the attorneys involved, but since I'm not, and not covered by WI ethics...

Mike said...

do any of you know what the open meetings law is? sheesh.

Almost Ali said...

Please, Judge Sumi is making new law! And only because there's nothing in the old law that empowers her to remove Gov. Walker from office. So kindly keep quiet while she conjures up precedent which undoubtedly will blaze new trials.

Joe said...

Mike, yes we do and have been thoroughly briefed on the actual law and it doesn't apply. Judge Sumi is contemplating what is about as clear as can be. So, either she's dumb as a brick, grandstanding or both.

That aside, I still can't figure out what her jurisdiction is in this case. As far as I can tell, she has none. But, if Wisconsin wants to be a banana republic, who am I to stop them?

Almost Ali said...

Still, I'm hoping Sumi goes to the wall for the unions, and creates new law in their favor. Which will leave Gov. Walker no alternative but to fire the whole lot of 'em.

Kevin said...

She's a thug, just like her union supporters.

Kevin said...

From wikipedia:

The People's Court (German: Volksgerichtshof) was a court established in 1934 by German Chancellor Adolf Hitler, who had been dissatisfied with the outcome of the Reichstag Fire Trial (all but one of the accused were acquitted). The "People's Court" was set up outside the operations of the constitutional frame of law. The court had jurisdiction over a rather broad array of "political offenses," which included crimes like black marketeering, work slowdowns, defeatism and treason against the Third Reich. These crimes were viewed by the court as Wehrkraftzersetzung ("disintegration of defensive capability") and were accordingly punished severely. The death penalty was meted out in numerous cases in this court.
The Court handed down an enormous number of death sentences under Judge-President Roland Freisler, including those that followed the July 20 Plot to kill Hitler. Many of those found guilty by the Court died in the Plötzensee prison. The proceedings of the court were often even less than show trials in that some cases, such as that of Sophie Scholl and her brother Hans Scholl and fellow White Rose activists concluded in less than an hour, without evidence being presented or arguments made by either side. The president of the court often acted as prosecutor, denouncing defendants, then pronouncing his verdict and sentence without objection from defense counsel, who usually remained silent throughout. Unsurprisingly, it did not follow the laws and procedures of regular German trials, being easily characterized as a "kangaroo court".

Almost Ali said...
This comment has been removed by the author.
Almost Ali said...

If you think Sumi is cute, wait'll you see a supreme Kloppenburg.

DKWalser said...

@Canuck: There are three legal arguments why what the trial court did in issuing its temporary restraining order (TRO) was "unusual".

First, the Wisconsin Supreme Court ruled that NO state court has the authority to prohibit the publication of a law. The state's petition to appeal the TRO addresses this first argument as follows:

"In Goodland, 243 Wis. at 468, the court cautioned trial courts:

If a court can intervene and prohibit the publication of an act, the court determines what shall be law and not the legislature. If the court does that, it does not in terms legislate but it invades the constitutional power of the legislature to declare what shall become law. This it may not do."

In summary, the 1st argument is that it was unusual for the trial court to issue a TRO for the purpose of determining whether or not the trial court should do that which the state's highest court has already said no trial court can do -- prohibit the publication of an act.

The second argument was addressed by the Wisconsin Supreme Court in State ex rei. La Follette v. Stitt, 114 Wis. 2d 358,
364-68, 338 N.W.2d 684 (1983):

"… [T]he Court declared that courts will not "review legislative conduct to ensure the legislature complied with its own procedural rules or statutes in enacting legislation" and "will not intervene to declare the legislation invalid."" Note: This paragraph, other than this note, is from the DOJ's petition.

In summary, the second argument is similar to the first. The state's highest court has already ruled that a court may not invalidate a law merely because the law was passed in violation of a rule or statute. The alleged violation of the open meetings law CANNOT justify invalidating the law – so, why should the judge issue a TRO to review whether or not to invalidate the law because of the alleged violation of the open meetings law?

The third argument is that the court has no authority, based on an alleged open meetings law violation, to order the Secretary of State to do anything. The open meetings law does NOT apply to the Secretary of State. Even if it did, the Secretary of State did not attend the meeting that was held (allegedly) in violation of the open meetings law. So, how can the Secretary of State be a defendant in the suit brought by the county DA?

The Secretary of State, acting in his official capacity, benefits from sovereign immunity and courts have no authority over the Secretary of State for an alleged violation of a law unless that immunity has been affirmatively waived by the state. (Some laws specifically allow suits to be brought against state officials. That's the exception, not the rule.) The open meetings law does not waive the Secretary of State's sovereign immunity. The law provides for remedies that may be taken against members of a legislative body that violate the law, but it does not grant the courts ANY authority over an administrative (as opposed to legislative or judicial) official or agency.

In summary, since the court had no personal jurisdiction over the Secretary of State, it strikes some as unusual for the court to presume to issue a TRO covering the Secretary of State.

Too many jims said...

I, too, am dumbfounded that a judge would remind attorneys of the rules of ethics that govern them. What an out of control nazi bitch. How dare her.

Fen said...

I still can't figure out where she gets her authority in all this.

The Unicorns gave it to her.

Really.

rhhardin said...

There are probably lots of excellent judges who are bitches with bad moral character.

edutcher said...

Almost Ali said...

If you think Sumi is cute, wait'll you see a supreme Kloppenburg.

This is the sort of thing that just might get people out to the polls to rein in out of control Demo judges.

Jay said...

But these "progressives" are all for free speech.

Just ask them.

Jay said...

She also pleaded with Walker, Fitzgerald et. al. to just re vote the stupid thing!

Then she should run for a seat in the legislature.

Her "pleading" has no value.

AllenS said...

Lawyers worth their salt should take up Judge Sumi's warning. I took a lawyer in front of the Bar Association once. You have to argue your case. I think she's on thin ice. I'll bet I could beat her in court.

Fuck off, Sumi.

Lucius Septimius said...

So, if I have this straight, Sumi had no jurisdiction in this case regarding internal procedural rules of the legislature, and the Supreme Court of WI had ruled on at least two occasions that State Courts cannot interfere in the publication (or enactment) of a law passed by the legislature.

So, then, what possible basis, other than threatening the attorneys, did she have?

This sounds like yet more of the leftist tactic of creating chaos and undermining faith in legal constituted bodies. With respect to the latter, her comment that the parties in the case "have a responsibility to promote and not denigrate the judicial branch and, more importantly, the rule of law," sounds to me like a bit of a Freudian slip.

The Drill SGT said...

She advised lawyers to review state Supreme Court rules that say: "A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge...."

You folks seem focused on criticism of the TRO and Sumi, but doesn't ths apply directly to any WI lawyers associated with the Prosser ad?

Lucius Septimius said...

but doesn't ths apply directly to any WI lawyers associated with the Prosser ad?

It's hard to see how; it's one thing for an attorney directly involved in a case to criticize a judge's rulings/conduct publicly; it's another thing to threaten any attorney for disagreeing. The latter is an assault on free speech.

Of course, it's probably imprudent for attorneys to make a habit of criticizing judges.

LawGirl said...

Thank you, DKWAlser for a summary of at least some of the most persuasive arguments against this whole charade.

I think this sums the issue up well:

The alleged violation of the open meetings law CANNOT justify invalidating the law – so, why should the judge issue a TRO to review whether or not to invalidate the law because of the alleged violation of the open meetings law?

I'm not quite as sanguine as Bruce about whether she means to apply this only to the lawyers appearing in front of her or to the entire Wiconsin bar.

While she obviously has no authority to enjoin me or other Wisconsin attorneys from being critical of her position (or, for that matter, of her), she has already proven that she doesn't really care whether she truly has authority to do something - she attempts to do it anyway.

For example, she seems to believe she can somehow enjoin non-parties to a case from executing their ministerial duties under the statutes without naming those parties or finding them in privity with a party to the case (and, the LRB is not in privity with the Secretary of State in executing their statutory duties, so could not be enjoined from publication in any event). But, this judge chooses to completely ignore both the rules of civil procedure AND the statutes governing the ministerial duties of both SOS and LRB in so doing.

So, I'm not so confident she doesn't somehow believe that this applies to every lawyer subject to the Wisconsin Rules of Professional Responsibility. Not that she would be right, of course, but we're talking here about what she is attempting to do (not what she actually can do, which are two very different things).

LawGirl said...

And, Mike, I believe you are the dim one. She issued a TRO enjoining the Secretary of State from doing something he has no authority to do. That's like enjoining me from dating Brad Pitt. Meaningless.

LawGirl said...

The Drill SGT said...
She advised lawyers to review state Supreme Court rules that say: "A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge...."

You folks seem focused on criticism of the TRO and Sumi, but doesn't ths apply directly to any WI lawyers associated with the Prosser ad?


I believe she believes it does. It's just another example of her attempts at overreaching.

Lucius Septimius said...

Re: Lawgirl

So what if she orders Brad Pitt to date you?

kate said...
This comment has been removed by the author.
Lucius Septimius said...

Lawgirl said: I believe she believes it does.

Very likely; I can't imagine her complaint standing up before the state bar, though, unless we're talking the Brat Stop.

LawGirl said...

Lucious said: Very likely; I can't imagine her complaint standing up before the state bar, though, unless we're talking the Brat Stop.

I agree completely.

Ex-prosecutor said...

I'm an appellate court judge in another state and am baffled by what's going on in Wisconsin. It looks to me like all the judges are afraid of union voters. I was unaware that an intermediate appellate court could opt out of deciding a case with the flimsy reasoning used by the Wisconsin COurt of Appeals. While it's tempting for a court to throw up its hands when there may be a conflict between state supreme court decisions, intermediate courts are supposed to resolve such conflicts, not just shove it upstairs.

As for Judge Sumi, it looks to me like her sole interest is making sure she remains electable to her own seat or maybe a higher one.

She has belongs in a courtroom about like Judge Ito did.

Sixty Grit said...

More liberal fascism. Get used to it.

Lucius Septimius said...

re: Ex-prosecutor

Having watched the process closely in several states, Wisconsin has always struck me a a bit odd in that regard.

Roger J. said...

It seems to me that Andrew Jackson defined the authority of the court: Mr Marshall has made his decision; now let him enforce it.

David said...

Have we called Judge Sumi a bitch enough for one day now? It's not a highly persuasive assertion. For all we know she is as sweet as your sainted granny. I knew her husband Carl way back in the day. Nice guy. Peach of a man. Incorrigible lefty, but not a bad guy.

Unless now we think that all who disagree with us are evil . . . .

David said...

Joe said...
I still can't figure out where she gets her authority in all this.


She apparently can't either. It would be useful to see a reasoned opinion from her.

Patrick said...

For those who do not see the value of a limited judiciary (or limited government, for that matter), this is a hard case to see where the problem is. Typically, when lefties see a problem, their gut reaction is to seek a solution from the government. When they aren't successful at the legislative branch, they turn to what George Will referred to as "the first refuge of the politically unsuccessful," using the judiciary to accomplish what they couldn't gain popular support for through an election (it's easier to convince one judge than a million people. This, of course goes even further. You've got a judge, acting against relatively clear case law, not even bothering to explain why that case law does not apply. She's enjoining a party from doing something it has no power to do (although you can see Prof. Ed Fallone for a different view, with which I disagree, and have explained near the bottom of the comments), again with no explanation. Now, she is expanding the scope of her order, apparently to DOA, not a party, and claims her order applies to another non-party.

Basically, the DA and the judge (both of whom need to be re-elected in Madison), threw a bone to the unions, but did so in astoundingly lazy fashion. Why bother with "technicalities" when they are doing something really important.

enicar333 said...

The rage of the public servants knows no bounds. At Union Grove, In Racine County they are demanding stores display union symbols or they will boycott them. Talk about killing the goose that laid the Golden Egg. "Numerous Union Grove shops threatened with union boycott" You DO NOT deal with terrorists - FIRE the public servants and re-hire without the union. http://www.journaltimes.com/news/local/article_aba5a224-5b8c-11e0-88b7-001cc4c03286.html

Mr. D said...

Have we called Judge Sumi a bitch enough for one day now? It's not a highly persuasive assertion. For all we know she is as sweet as your sainted granny.

My sainted granny never tried to overturn laws passed by the state legislature and signed by the governor. Nor did she threaten professional sanction against those who criticized her reasoning.

Tell you what, can we substitute "charlatan" for "bitch?" By your leave, of course.

WineSlob said...

@David, who said "Unless now we think that all who disagree with us are evil . . . ."

Sumi would cheerfully condone these evils, among others:

--Death threats on republicans;
--Voter fraud;
--Threats and intimidation against republicans;
--Criminal trespass and property damage;
--Threatening attorneys and public officials who respectfully beg to differ with her b.s.

There is no question that she has some evil intentions that have manifest themselves in her demeanor, angry thuggery and disregard of the facts.

I would agree with David, though, that calling Sumi a bitch is not warranted. That term does not go far enough to describe this common scold hack of a judge.

lawyapalooza said...

Anyone who thinks Sumi is not qualified or is a "leftist" has never been in her courtroom. Period.

It is not disturbing to remind lawyers of our ethical responsibilities to tell the truth and to act civilly. What is disturbing is that such reminders are necessary to someone like Prosser.

Fred4Pres said...

She looks weak doing that.

kate said...

My sainted granny never tried to overturn laws passed by the state legislature and signed by the governor.

She's not trying to overturn anything - she's trying to determine if the state's open meeting law was violated.

Sofa King said...

She's not trying to overturn anything - she's trying to determine if the state's open meeting law was violated.

That can't affect whether or not the bill is law.

Pogo said...

WI democrats just weeks ago were protesting how Walker and the GOP were violating the constitution.

Now Sumi does arguably the same thing, and they're copacetic.

They have positions, not principles. They cite principles only when their opponents seem to violate their own.

Hagar said...

I would think that if the Walker administration (and the Republicans) are right about Wisconsin law regarding the publication of statutes enacted by the legislature, then that train had already left the station, and the Democrats are going to have to drive there before they can board.

In legal matters, precision counts, and Judge Sumi's intentions are rather irrelevant if the fact is that her TRO was sent to the wrong address.

And if the Walker administration has legal opinions supporting their interpretation of the existing law, they have to enforce the new statute, or be in contempt for not doing so.

When judges fall out, the honest man comes intro his own!

LawGirl said...
This comment has been removed by the author.
Lucien said...

As discussed over at VC yesterday, when you read the TRO it seems like it does not purport to restrain anyone except the Secretary of State from doing anything, while it may be that under Wisconsin law it is not the Secretary of State who publishes statutes.

Anyone care to weigh in?

LawGirl said...

Sofa King said... (in response to kate's assertion that "She's not trying to overturn anything - she's trying to determine if the state's open meeting law was violated.") . . .

That can't affect whether or not the bill is law.

Exactly. See DKWalser, 1:44 a.m.

AllenS said...

It would be nice to have a law professor weigh in on this. Anybody know of one?

LawGirl said...

As discussed over at VC yesterday, when you read the TRO it seems like it does not purport to restrain anyone except the Secretary of State from doing anything, while it may be that under Wisconsin law it is not the Secretary of State who publishes statutes.

Anyone care to weigh in?


In the tiniest nutshell I can offer:

Under current law, the SOS "designates" a publication date. He did this. The LRB then publishes the law on the date that had been designated by SOS. They did this.

Both duties are ministerial. Neither of these entities can refuse to do their duty if they do not like the statute in question. The judge enjoined the SOS from "publishing," not from "designating a publication date," which is all he is statutorily bound or permitted to do. Thus, her order is meaningless.

LRB was not a party to the case and the SOS could not direct LRB to violate its own, separate, duties under the statute requiring it to publish the law within 10 days of enactment. They did so - on the date that had been designated by the SOS.

Christine said...

It can not be stated often enough: Sumi's son is an SEIU/AFL-CIO operative. Jacob “Jake” Sinderbrand runs a company called Left Field Strategies which earns it's money helping Unions win. Having your mommy as a Judge sure must help Jake's business.

Peter Ryan said...

Someone should check Sumi's recent phone records.

Has the White House contacted her with a quid pro quo, to wit, "you stand with the unions now and there's a federal bench seat with your name on it next year"?

LawGirl said...

Christine said: It can not be stated often enough: Sumi's son is an SEIU/AFL-CIO operative. Jacob “Jake” Sinderbrand runs a company called Left Field Strategies which earns it's money helping Unions win. Having your mommy as a Judge sure must help Jake's business.


This is an ad hominem argument. It says nothing about whether Sumi was right (she's not, for the reasons set forth above). Rather, it attacks her as a person. The other logical fallacy at work in this argument is guilt by association.

I would urge those who believe she is wrong as a matter of law and policy to stick to reasoning that is not grounded in fallacy - and there are plenty of non-fallacious reasons she is wrong.

DADvocate said...

An obvious abuse of judicial power. "I'm completely bias and on the take. Don't you dare criticize me."

Patrick said...

I agree with LawGirl. There is a bit of a question as to the effectiveness of SOS's "rescinding" the date of publication. Prof. Fallone at MU for one, believes that it was proper under the Judge's order, and effective to make the law "unpublished." I disagree with that for these reasons: First, the Order told SOS to "not publish." It did not say "rescind the date." It did not say "take other action to preclude publishing." Second, there is no statutory or constitutional authority to "rescind." The SOS has limited power, especially to essentially nullify a duly passed law. Allowing a rescission would leave the SOS with more power than granted under the constitution, and far more power than any thinking person would want to have in Doug LaFollette's hands. Finally, even if there were a valid rescission, the statute directing the LRB to publish states it must be published within 10 days if no date is designated. A rescission would mean there is no date designated, and the LRB would then have to publish.

Basically, the DA and Judge sued the wrong party, they did it so soon in a case that should not go forward. Enjoining the law after it takes effect may be one thing, but precluding the legislature from enacting it is over-reaching, and overreaching in a manner that they should really fear if they ever lose power. But, they are all good lapdog democrats, and have their union bosses to obey. Nice doggy, good doggy. Sit! Now stay!

WV: farylord. I'm thinking only bad things about LaFollette.

PaulV said...

Lawgirl, the appearance of impropriety is more than enough for a judge to recuse herself.
Enicar333, the union threat of illegal boycott may be violation of RICO statute.

Michael K said...

Wisconsin seems to be ground zero in this battle, perhaps because it has been a blue state traditionally. The unions may feel they have a better chance to invalidate the election than in Indiana or Ohio. It's too bad for the people who live there but the larger battle going on is whether this country can get control of spending before the bond markets do. Megan McArdle said the other day about the deficit; “I had always assumed we were going to get it under control, and I don’t think we are.” This is the question for the next two years. I'm afraid Wisconsin wound up in no man's land in the war. Of course, the state could be the hero if the voters turn out.

Richard Dolan said...

Looking at this and the Kloppenberg vs. Prosser contest from a vantage point a thousand miles away, the loser in all of it is the concept of an impartial, non-politicized judiciary. That concept has been taking on water -- sinking, really -- for some time now. But the fracas in WI is just the sort of high-profile media circus that will do lasting damage. Those who should be most concerned to avoid that damage (the judges in the first instance, and the Bar right after them) are adding to the problem. In other places and other times, a respected appellate court judge or Bar leader would try to exercise privately some leadership, and bring some more measured judgment to bear, by calling the players and strongly urge them to cool it. There are lots of back-channel ways to do that. Not sure whether it just isn't happening in WI, or whether things have gotten so out of control that the players are refusing to listen.

Very, very unfortunate.

madAsHell said...

It would be nice to have a law professor weigh in on this. Anybody know of one?

Yeaa....but she's having WAY TOO MUCH fun reading the comments. She won't act unless the discussion goes completely off the rails.

I'm learning a lot from Sofa King and LawGirl. I think at least one of them plays a lawyer on TV....and maybe even in real life!!

Patrick said...

Reasonably good discussion on whether publication is valid on wpr here: http://www.wpr.org/webcasting/audioarchives_display.cfm?Code=jca

Both buys are law professors at MU, and they keep it to a fairly straightforward legal analysis.

I really think Fallone is too willing to give the SOS power he simply doesn't have, and he never really explains why the words in the statute shouldn't mean what they say.

Roger J. said...

Law Girl--you seem analytical and sane--so wtf are you doing in WI

Agree the ad homs against sumi are ridiculous--the question it seems to me is what the law dictates. And I do appreciate your insights--and I would gladly substitute for brad pitt is judge sumi so ordered :)

Christine said...

LawGirl,
It's not ad hominem. It speaks to the question of propriety. It should affect her standing to rule on the case. She should have recused herself.

This is similar to a Judge ruling in a civil case where their child or partner were an employee of one of the litigants. I can find instances where Judges have been removed from cases for this very reason.

lawyapalooza said...

Here's the analysis from the LRB, the ones who you allege made it effective:

http://www.thewheelerreport.com/releases/March11/0325/0325barcaatty.pdf

Christine said...

The real lesson from this is what happens when we don't follow the advice of Alexander Hamilton in Federalist 79. While Hamiliton's focus is heavily on a fixed salary for the Judiciary the underlying tone...as when he argues for Judicial permanence...is that if your livelihood is a function of who you serve rather than what you serve (the Law) true judicial independence is impossible.

LawGirl said...

Christine said: This is similar to a Judge ruling in a civil case where their child or partner were an employee of one of the litigants. I can find instances where Judges have been removed from cases for this very reason.

Actually, it's not like those situations at all. Her son is not a party to the action. While he may benefit from a pro-union ruling, he is not a party to the action.

What is the logical stopping-point for forced recusal based upon the ideological viewpoint, occupation, or personal characteristics of one's friends and relatives?

If I'm a judge and have a neice who happens to belong to a union . . . or a husband who has contributed to Governor Walker . . . or a son who is homosexual (or hetrosexual) . . . do I need to recuse myself from every case involving unions, politics, or sexuality, respectively? That would disqualify everyone from being a judge in almost any case, especially politically-charged ones.

If she felt she could not rule impartially on this basis, I agree that she could have recused herself, but that's a far cry from saying that, under the facts as we know them now, she should have.

gutless said...

A petty tyrant but dangerous nonetheless.

LawGirl said...

Roger J. said: Law Girl--you seem analytical and sane--so wtf are you doing in WI

Agree the ad homs against sumi are ridiculous--the question it seems to me is what the law dictates. And I do appreciate your insights--and I would gladly substitute for brad pitt is judge sumi so ordered :)

hahaha. Thanks for the ego boost, Roger! Not to mention a good laugh at my own expense. :)

To answer another's question: yes, I'm a Wisconsin lawyer . . . and I have even played one on television a few times - pretty much just local newsies wanting to know legal-type stuff they think I can explain to the public. :)

Christine said...

No, Lawgirl, he is a paid employee of the party that brought suit. THAT is different then the scenarios you present.

LawGirl said...

No, Lawgirl, he is a paid employee of the party that brought suit. THAT is different then the scenarios you present.

No, Christine. He's not. The DA purported to bring the case in the following capacity: "State of Wisconsin ex rel. Ismael R Ozanne v. [A bunch of defendants].

I just encourage us to stick to analyis that is not grounded in fallacious reasoning. There is PLENTY of reason to criticize this proceeding without bringing in reasoning that the other side can rightly point to as fallacious and use to divert attention from the real issues.

Quilly_Mammoth said...

Financial interest is always a reason for recusal. Judges should follow Marshall as an example of why he recused himself from "Martin v. Hunter's Lessee" even though _he_ no longer had an interest his brother did.

James said...

No, Lawgirl, he is a paid employee of the party that brought suit. THAT is different then the scenarios you present.

Will you also call for Clarence Thomas to recuse himself when the Supreme Court rules on the constitutionality of the Health Care law?

Ignorance is Bliss said...

Judge Sumi has ammended the TRO as follows:

FURTHER, based on the briefs of counsel, the uncontroverted testimony, and the evidence received at the March 29, 2011 evidentiary hearing, it is hearby DECLARED that 2011 Wisconsin Act 10 has not been published within the means of Wis. Stats. §§ 991.11, 35.095(1)(b) and 35.095(3)(b), and is therefore not in effect.
SO ORDERED this 31st day of March 2011, at 8:15AM.


Is it normal to make a statement of fact in a TRO? This seems like an end-run attempt to restrain people who are not parties to the case.

Dust Bunny Queen said...

What is the logical stopping-point for forced recusal based upon the ideological viewpoint, occupation, or personal characteristics of one's friends and relatives?

Isn't this what the Democrats are trying to do with Judge Clarence Thomas? Force him to recuse himself from the potential Obama Care case by intimating that his wife is somehow involved?


If the Judges (in both cases) can be forced to recuse themselves on these flimsy and nebulous associations, what would be the limits of forced recusal.

LawGirl said...

Dust Bunny Queen says: Isn't this what the Democrats are trying to do with Judge Clarence Thomas? Force him to recuse himself from the potential Obama Care case by intimating that his wife is somehow involved?


My mama taught me that two wrongs don't make a right.

Dust Bunny Queen said...

My mama taught me that two wrongs don't make a right.

I'm agreeing with you.

By the standards that the Dems want to use and the ones that the anti Sumi people want to use....no one could ever be a judge because the grounds for recusal would have no boundaries.

Quilly_Mammoth said...

Will you also call for Clarence Thomas to recuse himself when the Supreme Court rules on the constitutionality of the Health Care law?

Kagan because of her previous involvement in the case (Just like Roberts did in Hamden) and Thomas fro the same reasons that O'Connor did in various telecommunications cases.

I'd be willing to bet that Thomas will if Kagan does. Kagan has recused herself from about 25 cases so far because of her involvement as Solicitor General...bets she'll do it on the Patient Protection and Affordable Care Act challenges?

former law student said...

The Sixth Circuit upheld sanctions in your neighboring state against Geoffrey Fieger, whose characterization of a state appeals court as "jackasses" and Nazis violated ethics rules of civility.

Jum said...

The judge's apparent bias plus this veiled threat means it's for the lawyers' nuclear option: the motion for recusal. I'm not sure how the Wisconsin judicial edifice looks at such motions, and I would be stunned if the judge granted it or it were even remanded for reconsideration on appeal. But it's time to call a spade a spade and not a shovel.

Fen said...

It's not ad hominem. It speaks to the question of propriety. It should affect her standing to rule on the case. She should have recused herself.

I agree, but I think the point was that Sumi is easily dispatched by attacking her ruling as unsound. You've got a limited amount of time/attention to refute, so why get bogged down with a parry/reposte when a simple thrust will get the job done.

Methadras said...

Canuck said...

In the U.S. I thought it was Marbury vs. Madison?


That's true, but I was speaking in terms of not having a petitioner bring a law before the court for judicial review, but instead having a sitting judge, without request from anyone (it's my understanding and I could be wrong here, that Sumi simply interjected herself and gave a ruling) interject themselves and issue a ruling. Is that what happened here? Did petitioners go to Sumi for review? I don't know that's why I'm asking.

David said...

most of you people are complete hypocrites. EVERYthing the WI republicans have done has been immoral, unethical, or illegal, and the final straw was breaking the open meeting laws, which they did without ANY question whatsoever. grow up and start living in the real world.

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