More patent dishonesty from WMC

So James A. Buchen, one of the handful of characters in charge of Wisconsin Manufacturers & Commerce's political activities, claims that WMC "actively lobbied for final passage of the [University of Wisconsin] budget."

"But no such lobbying effort shows up in WMC's report to the state Government Accountability Board," according to the Milwaukee Journal-Sentinel's Patrick Marley.

Instead, Buchen points to one sentence from its Legislative Agenda, buried in a .pdf file deep within WMC's website.

Buchen was responding to outgoing UW Chancellor John D. Wiley's plangent asskicking that appeared online this morning.

Even better, Chancellor Wiley also accused WMC of engaging in personal attacks against former State Supreme Court Justice Louis Butler, which WMC unquestionably did.

Yet James Buchen flatly asserts, "WMC did not engage in personal attacks, and that is simply false."

Unfortunately for James A. Buchen, what's utterly false is his own statement. The truth is that in two of WMC's teevee ads, the business outfit did nothing except engage in personal attacks.

WMC's personal attacks are otherwise known as circumstantial ad hominem, a logical fallacy, in which WMC freely indulged.

A circumstantial ad hominem is one in which some irrelevant personal circumstance surrounding the opponent is offered as evidence against the opponent's position. This fallacy is often introduced by phrases such as: "Of course, that's what you'd expect him to say." The fallacy claims that the only reason why he argues as he does is because of personal circumstances, such as standing to gain from the argument's acceptance.

This is precisely what WMC did.

During this year's State election campaign, WMC produced and aired spots devoted to Justice Butler's lone dissenting opinion in a case called State v. Jensen. In that opinion, Butler enunciated an argument based on the Sixth Amendment to the Constitution and its history that was subsequently affirmed by the most conservative Justices of the United States Supreme Court in a similar case out of California.

However, rather than engaging Justice Butler's reasoning, WMC portrayed him as someone "delivering loopholes" and "siding with criminals who threaten our safety." In its other Jensen ad, WMC referred to the Sixth Amendment itself as a technicality, and suggested through its use of Butler's ancient nickname that Butler was actively seeking to find a "technicality" in the case.

Louis Butler, decades ago, worked for the Wisconsin State Public Defender. He earned the nickname, which WMC put to such shamelessly fallacious use, because he was good at that job. Even assuming that the task of criminal defense lawyers is "finding loopholes," it's completely irrelevant to the role of a Supreme Court Justice, who is an advocate for neither side in disputes.

Here are the texts of both WMC teevee spots:

We count on judges to use practical common sense to keep violent criminals behind bars. But faced with an unspeakable crime, Justice Louis Butler almost jeopardized the prosecution of a murderer because he saw a technicality. When prosecutors needed to show critical evidence, Butler dissented, going against six other Justices. Thankfully, he didn't get his way. Jurors said it was the most important piece of evidence they saw. Call Louis Butler. Tell him to stand up for victims, not technicalities.

We've heard it before. Judge cites loophole, sides with criminal who threatens our safety. Take Justice Louis Butler. His colleagues called him Loophole Louie. A woman beaten to death with a bat. Butler uses a loophole, suppressing critical evidence. A husband poisoned his wife. Butler cites a loophole, almost jeopardizing the prosecution. Butler doesn't mind being called Loophole Louie. He says it's affectionate. Call Justice Louis Butler. Ask him to deliver justice, not loopholes.

This is pure personal attack, nothing more. Neither ad says anything about the constitutional arguments Butler forwarded in his opinion in Jensen. Argumentation attacks arguments. Ad hominem attacks the person: personal attacks. That's what ad hominem means.

And you'll never hear a peep out of WMC that Justice Antonin Scalia arrived at the same conclusion as did Justice Butler based on the same constitutional principles and their historical antecedents.

Not loopholes, and not technicalities. The Sixth Amendment. And because the Sixth Amendment applies not only to the federal government but also to the States, Justice Scalia's opinion is now the law of the land. Justice Butler beat him to it, that's all.

UW Chancellor Wiley is entirely correct in characterizing James Buchen's attempt at defending WMC's personal attacks as "lame." In fact it's beyond lame. It's disingenuous and intellectually dishonest.

But there's nothing surprising about that, as the entire campaign against Justice Butler — including that of his politically motivated challenger — was marked by patent dishonesty from start to finish. And, evidently, it continues still, thanks to those who speak on behalf of Wisconsin Manufacturers & Commerce.

Judith Faulkner, corporate heroine

Epic has not run a press release for 18 years. In fact, the only advertising the company has sponsored was a billboard with the slogan, "Marketing Sucks ... Epic Systems."

The notoriously publicity-averse Judith R. Faulkner made very positive news last week with her principled stand against a business association, Wisconsin Manufacturers & Commerce, and its opprobrious conduct during last winter's State election campaign.

Ms. Faulkner is a remarkable entrepreneur. She founded Epic Systems, a developer of healthcare information software, in 1979 with $6,000 and last year its sales topped $500 million. She remains in firm control of the privately held operation, which employs more than 3,000 and is looking for many more.

Judith Faulkner, much like a lot of us, didn't take kindly to the numerous and varied deceits that WMC produced attacking a sitting Justice of the Wisconsin Supreme Court, Louis Butler.

Last Wednesday, Epic published a statement referring to the campaign as a "travesty of ethics" and suggesting that WMC was largely responsible.

On Friday, Epic further clarified, “We believe that what we tolerate is what we stand for, and as corporate citizens, we stand for the preservation of the foundation of the judicial system.”

To that end Epic will "try to work only with vendors that do not support WMC with its current management."

Good for Judith Faulkner, and good for Epic Systems.

Epic management said that they could not support WMC's role in the Supreme Court race, which saw WMC pour approximately $1.8 million dollars into an ad campaign on behalf of Judge Michael Gableman.

Whether that money was spent on behalf of Gableman or purely on egregiously deceitful attacks against Justice Butler is a close question.

WMC barely mentioned Gableman, likely because there was little to say on behalf of him to begin with, and especially while Gableman's own campaign descended to previously untrolled depths of patently false and disgraceful innuendo, a campaign Gableman actually claimed to have been proud of.

A University of Wisconsin-Madison professor of political science hints darkly at illegal activity:

Epic's threat not to work with another company based on an election campaign appears to be the first of its kind nationwide, said Howard Schweber.

"We should be uncomfortable when private businesses have enough power to coerce businesses or other organizations to change their political views or affiliations or keep them secret," Schweber said.

Why? Epic Systems isn't colluding with its competitors to freeze out or favor a vendor. It's acting independently. Vendor selection and purchasing policy isn't limited to commercial considerations of price and delivery.

In fact Epic may only injure its own bottom line if avoiding WMC-affiliated suppliers results in higher priced or longer delivery items. A WMC spokesguy is defiant, or something, saying he won't be "intimidated." Bully for him.

Placing principle above lucre is nothing to be sneered at, especially in this case, where the principle at issue is central to the continuing success of the republic: the integrity of the courts.

In addition to the irony of the apparently unwitting reference to coercive corporate power — the abuse of which is Judith Faulkner's concern, not partisan politics — Prof. Schweber misses the point.

Epic's approach has nothing to do with partisan views or affiliations, it has to do with ethics, plain and simple. WMC waged a mendacious campaign of deliberate misinformation against a State Supreme Court Justice. Epic would prefer at the least not to mingle its lucre with that which is trading in sleaze.

Just as Epic can choose not to cut purchase orders to suppliers that engage in shady business practices so can it rebuff those connected to WMC's unseemly tactics. Selecting against WMC-affiliated suppliers is little different than purchasing only recycled toilet paper or only company bowling team shirts not manufactured in Bangladesh sweatshops.

It seems to me Epic's policy is laudable. Corporations may choose to express civic responsibility in a variety of ways, and this is one of them, based on a particularly admirable principle.

And WMC, having spent nearly $2 million on effectively attempted character assassination, certainly understands the coercive — and corrosive — power of lucre. If some WMC-affiliate suffers financially as a result of Epic's policy somehow, it will be a small price to pay for the sins committed earlier this year and beyond. Free market, the invisible hand and all that, coming back to slap you.

Prof. Schweber's discomfort would be far more accurately directed at Wisconsin Manufacturers & Commerce and not Epic Systems.

eta: Without providing a lick of evidence for either assertion and indeed in the face of evidence suggesting otherwise, Rick Esenberg describes Epic's statement as a "threat" and one of Epic's building contractors' withdrawal from WMC as a "submission" to that "threat."

But he does admit he only "imagines" it.

Result orientation, the good WMC kind

Wisconsin Manufacturers & Commerce has a new webpage up touting its new video that appeared on YouTube over the weekend. The video, which displays mug shots of the Justices under the rubrics "activist" and "traditionalist," is purported to contain a "full briefing" on issues relating to Louis Butler and the Wisconsin Supreme Court.

Obviously it isn't a full briefing on anything by any stretch of the imagination, but here's a few tidbits that might help in formulating a fuller briefing as to the disingenuous games WMC is playing.

Michael Gableman, the Burnett County judge who's challenging Butler in an April 1 election, is described by WMC as a "traditionalist." This is fascinating, because while the WMC claims its "activist" labels are supported by data from a study commissioned from some outfit in Oklahoma, the competing "traditionalist" labels, as applied to Gableman and WMC's last favored candidate, Justice Annette Kingsland Ziegler, are supported by ... nothing.

The webpage also features a number of links to political brochures comparing, as WMC sees it, the relative merits of Butler and Gableman and, under the heading "Resources," no less than five in a row invoking our good friend, Prof. Rick Esenberg of Marquette Law School and Federalist Society fame.

The Oklahoma outfit, Sequoyah Information Systems, Inc., is the brainchild of Marc Nuttle, a conservative Republican activist associated with, among other things, the presidential aspirations of celebrated zany "Rev." Pat Robertson. The Sequoyah, Inc. "judicial report" mentioned in the WMC video is also linked at the page.

The 14-page document is virtually identical to another prepared in 2005 "evaluating" the judges on an Alabama appeals court. Both consist of mostly boilerplate language describing, for example, the role of judges and how the civil appellate process works. For comparison, the Alabama document is here (.pdf; 14 pgs.).

And both contain a colorful bar graph featuring each judge's name accompanied by a figure expressed in percentage supposedly representative of each judge's "score," which Sequoyah, Inc. coyly admits is based on "a particular substantive-policy point of view."

Scrolling through the boilerplate in each document leads to a title page which promises, in gigantic font, "Case Index." Ah, here we are, at long last, the data relied on to produce WMC's conclusion that Justice Butler possesses "the second worst record on the court."

Except the title page is the final page of each document — there is no "case index." Where is it? Doesn't WMC want us to have a peek? If not, why not?

I think I know why. Because WMC itself is 110% "result oriented." They don't really care so much what reasoning was employed to reach the dispositions in whatever cases Sequoyah, Inc. used to prepare its bar graphs. They only care whether the decisions, however arrived at and however reasoned, have a tendency to favor the plaintiffs or the corporate defendants in civil liability actions.

And because, no matter what, favoring civil plaintiffs is bad and favoring civil defendants is good (except when it comes to criminal cases, where the evil vs. righteousness test is necessarily and automatically reversed: then, government good, defendant bad).

What makes WMC's results orientedness even more peculiar are the views of Judge Diane Sykes, the former Wisconsin Supreme Court Justice since appointed to the federal 7th Circuit by President George W. Bush. In 2006, Judge Sykes delivered a lecture at her alma mater, Marquette Law School, in which she criticized the State high court for its own results orientedness: "pure, unvarnished result orientation," to be precise.

When courts or individual judges are criticized for being results oriented, it means they have the decision they want in mind before they set about the exercise of opinion formulating, and the clear implication is that they select and manipulate the facts and the law to suit their own personal preferences. It's not a compliment, nor an expression meant to be flattering by any means.

Another remarkable aspect of all this is that Judge Sykes's lecture figures prominently in both Rick Esenberg's Federalist Society paper, "A Court Unbound?" and young GOPer and would-be Gableman operative Daniel Suhr's series of "white papers." The same accusations have also turned up in a number of Gableman campaign statements and indeed, in statements made by Gableman himself.

So, here we have WMC relying on a set of clearly related criticisms of Louis Butler's "result orientation," demanding "result orientation" of its own, in its own favor, and talking up a candidate who promises "result orientation" in "stark contrast" to that of the incumbent, for the purpose of satisying WMC's desired "result orientation."

Isn't that special? Apparently, result orientation can be a good thing too, but if and only if it's oriented toward the result you want. Otherwise it's bad. One thing's for sure, WMC's own "pure, unvarnished result orientation" is a hell of a lot easier to prove than is Justice Butler's, which is 110% an exercise in mental telepathy.

[Please visit the iT Butler/Gableman archive.]

Right-wing busts open the latest conspiracy

Yesterday an anonymous commenter here left behind a strange deposit alleging that criticism of Wisconsin Manufacturers & Commerce is part of an "orchestrated campaign."

Just coincidentally, I'm sure, an earlier post at Milwaukee medium-wave harlequin Charlie Sykes's so-called blog claimed as Maestro of the said "orchestration" the governor of Wisconsin:

Sore Loser Lefty of the Day — John Wiley. First: none of these attacks on WMC is coincidence. This attack, Louis Butler's, and all the other "WMC is the problem" voices out there are being orchestrated by Jim Doyle, who is still wanting to make WMC pay for not supporting him last election.

Sykes actually considers this baseless conspiratorial observation a "savvy" one. Seriously.

And sure enough, the Milwaukee Journal-Sentinel's dependable "right-wing guy" Patrick McIlheran is all over it:

Why would Wiley do this? Sykes' blog quotes a listener who contends by email that this is all orchestrated by Jim Doyle, ticked off at WMC.

Sounds plausible. The left-wing pressure group One Wisconsin Now has been trying to get its followers to flood WMC members' inboxes with emails saying they'd better stop being so Republican.

How's that for an intuitive handspring. So, what — Jim Doyle is running One Wisconsin Now, now? Sound plausible?

"The nerve of those tradesmen," McIlheran snorts. I don't know about McIlheran, but I detect the presence of no tradesmen among WMC's Board of Directors. I see corporate CEOs, managing partners at the State's biggest law firms, bankers, and financial consultants.

No manufacturers of tinfoil hats, however, which Sykes and McIlheran and their dedicated followers must be purchasing from out-of-State.

I doubt McIlheran would find any tradesmen among the partisan hacks who orchestrate WMC political campaigns either. Unless he has in mind steamfitters and plumbers in the Nixonian sense.

And non-union ones at that, naturally.

But he would definitely find lots of tradesmen on Epic Systems's construction site near Madison working for David Cullen, who withdrew from WMC in the wake of WMC's multi-million-dollar campaign of sleazy personal attacks against Justice Louis Butler.

As far as I can tell, everybody who opposes WMC's political techniques does so for their own individual reasons and indeed, one of WMC's most energetic critics, Paul Soglin, actually supports many of its goals. In most cases, it's the means and not the ends that are at issue in this ongoing debate.

If both Sykes and McIlheran seriously believe Governor Jim Doyle is acting as the puppetmaster to the WMC critics, you'd think they could come up with some better evidence than an unsigned e-mail from one of Sykes's own devoted and clownishly "savvy" acolytes.

Then again, probably not. Because the only conspiracy in evidence here is the one between fellow Journal Communications, Inc. employees Charlie Sykes and Patrick McIlheran. Forward, meme.

More from the cappermeister.

WMC can't spin away from lies

Dave Zweifel in the Capital Times relates an amusing anecdote, in which a spokesmodel for Wisconsin Manufacturers & Commerce calls up to complain about one of Zweifel's previous columns.

According to Zweifel, WMC's Jim Pugh "insisted ... that the 'Loophole Louie' label they tagged on Supreme Court Justice Louis Butler was simply good-natured ribbing."

Is that so.

Consider WMC's teevee ad "Looking for Loopholes," in which an all-but-tearful narrator intones from the following script:

We've heard it before. Judge cites loophole, sides with criminal that threatens our safety. Take Justice Louis Butler. His colleagues called him Loophole Louie. ... A husband poisoned his wife. Butler cites a loophole, almost jeopardizing the prosecution.

The poisoning case to which WMC refers is State v. Jensen. The ad is one of two that WMC produced devoted to Justice Butler's opinion in Jensen.

Merriam-Webster defines "loophole" as "a means of escape; esp. an ambiguity or omission that allows one to evade the intent of a law or contract."

Justice Butler was the lone dissenter in Jensen, as against the six Justices in the majority, led by WMC's "traditionalist" avatar, former Justice Jon P. Wilcox. (That's how you "almost jeopardize" a prosecution, apparently.) This is what the majority held:

Today, we explicitly adopt this [forfeiture by wrongdoing] doctrine whereby a defendant is deemed to have lost the right to object on confrontation grounds to the admissibility of out-of-court statements of a declarant whose unavailability the defendant has caused.

In this instance, the "loophole" is the forfeiture by wrongdoing doctrine and the application of that "loophole" is its explicit adoption by the Jensen majority.

From the opening paragraph of Justice Butler's dissent in Jensen:

The Confrontation Clause of the Sixth Amendment to the United States Constitution provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him" (emphasis added). Article I, section 7 of the Wisconsin Constitution similarly provides: "In all criminal prosecutions the accused shall enjoy the right . . . to meet the witnesses face to face" (emphasis added). The operative word in each of these constitutional provisions is the word "all." Neither provision creates a homicide exception to the constitutional guarantee of confrontation.

Facing precisely the same question arising from another State, the United States Supreme Court agreed with Justice Butler. From the Giles v. California syllabus:

Held: The California Supreme Court’s theory of forfeiture by wrongdoing is not an exception to the Sixth Amendment’s confrontation requirement because it was not an exception established at the founding.

The author of the majority opinion in Giles? Conservative standard-bearer Antonin Scalia, joined in full by Chief Justice Roberts and Associate Justices Thomas and Alito.

To be sure, should the man convicted of poisoning his wife, Mark D. Jensen, receive a new trial — which seems likely — it will be thanks to Justice Scalia and his conservative colleagues, and certainly not to Justice Butler's one-man dissent. In other words, Justice Scalia closed a loophole, he didn't discover one.

And the loophole Scalia closed is exactly the one to which Justice Butler objected. Elsewhere a WMC spokesmodel referred to Butler's objection, an objection grounded in the original understanding of the United States Constitution, as "a needless technicality."

Last week WMC issued a brazenly hypocritical press release, accusing its critics of waging "an organized campaign of misinformation." I would go further. WMC's characterization of Justice Butler's dissent in Jensen is beyond misinformation. It's a flat out lie.

WMC: Still dissembling after all these years

Walker bill does little to improve State's "honesty climate"

So Wisconsin Manufacturers & Commerce is overjoyed its "tort reforms" were signed into law by Governor Scott Walker this morning. According to WMC vice president James A. Buchen:

The Wisconsin Supreme Court created the ["risk contribution" theory] standard allowing plaintiffs to sue any lead paint manufacturer that sold paint in the state without proving which product caused the harm.

That is simply not true. The Wisconsin Supreme Court did not "create" the standard at all but rather adopted it from other jurisdictions in 1984 in the case of Collins v. Eli Lilly & Co.:

We emphasize, however, that the plaintiff need not prove that a defendant produced or marketed the precise DES taken by the plaintiff's mother. Rather, the plaintiff need only establish by a preponderance of the evidence that a defendant produced or marketed the type (e.g., color, shape, markings, size, or other identifiable characteristics) of DES taken by the plaintiff's mother; the plaintiff need not allege or prove any facts related to the time or geographic distribution of the subject DES. If the plaintiff is able to prove these elements, the plaintiff may recover all damages from the one defendant.

Mr. Buchen needs to read this opinion, including especially footnote 10, and stop dissembling about the court's 2005 lead paint decision.

Even the dissenters to the latter decision, whose beef was not with risk contribution per se but rather its application to the lead paint defendants, acknowledged that "this case clearly does not fall within the theory of risk contribution originally formulated in Collins."

Emphasis added. It's remarkable that Buchen could have overlooked this unequivocal acknowledgment, as other portions of that dissent have made their way into local conservative Republican mythology.

And those two dissenters included the still-incumbent Justice David Prosser, who "recognize[d] the validity of the risk-contribution theory of recovery articulated by this court in Collins." Quote, unquote.

Oppose the doctrine, but there's no need to lie about it. On the other hand, if and when WMC launches its advertising campaign* in support of Justice Prosser, some attentive reporter might ask WMC why it is endorsing such an enthusiastic proponent of risk contribution theory.

Indeed, were it not for Collins v. Eli Lilly & Co.'s "validity," there would have been no Thomas v. Mallett for WMC to complain about.

* Quite obviously Buchen's and WMC's obsessions with Thomas v. Mallett are focused on its author, Louis Butler, whose pending nomination to the federal bench is opposed by the WMC klatsch.

In 2008, WMC ran 3,069 television advertisements assailing a Butler dissent in a Sixth Amendment case, whose historical and legal principles were subsequently affirmed by Justices Scalia, Roberts, Thomas, Alito, and Kennedy, the first four, at least, being among the most revered figures in the conservative pantheon. The teevee spots represent a monument to sheer political irrationality and bad faith.

McIlheran voices support for Soglin, Butler

Patrick McIlheran, the self-described "generally right-wing guy" who composes comedy routines for the Milwaukee Journal-Sentinel, posted this little puzzler the other day: The Gall! In it, McIlheran observes that bloggin' Mayor Soglin and others picketed the Madison HQ of Wisconsin Manufacturers & Commerce on Wednesday.

As readers of this here blog are well aware, WMC and its fellow travelers are engaged in a suspicious and empirically-challenged negative political campaign against Wisconsin Supreme Court Justice Louis Butler on altruistic behalf of the cash-strapped Michael Gableman, the Burnett County Judge who has himself leveled a number of preposterous claims at the sitting Justice.

McIlheran's perfunctory two-paragraph burlesque contains links to two items, one a brief report of the picket, and the other a 2005 editorial by McIlheran's beloved Wall Street Journal brain trust. It's not entirely clear what McIlheran's point is, but since it's filled with faux outrage and labeled "First Amendment," presumably he was writing in support of Soglin and Co.'s constitutional rights to freedom of speech and peaceable assembly. Indeed, McIlheran's own link notes the pickets were meant to "draw attention to [WMC's] funding of political ads."

The WSJ editorial, "Alabama North," which purports to critique two of Justice Butler's opinions (one of which he didn't write), is also a favorite of WMC propagandists as well as WMC video star Rick Esenberg, who cites it in his celebrated Federalist Society paper, "A Court Unbound?" ("A Court Unbound," by remarkable coincidence, is WMC's theme for its World Breakfast Tour, which brings its tasty flapjacks to flip in Green Bay next Friday.)

Ever the lovable zany, McIlheran, in the space of about four sentences, manages to describe the two decisions — which together run nearly 350 pages — as a "whim."

As the WSJ noted in August, 2005, "GOP Congressman Mark Green is already making this part of his campaign for Governor, while Democratic Governor Jim Doyle has yet to make a firm public statement." And as Justice Butler's attackers are tirelessly fond of reminding us, Louis Butler lost his electoral bid for the Supreme Court in 2000, and is seated there now only by dint of his 2004 appointment by Governor Doyle.

The implications being that Butler is merely a political appointment, and that the people of Wisconsin don't really want him there, because when presented the opportunity in 2000, they declined the invitation. What WMC and its surrogates are less likely to tell you, of course, is that the aforementioned Señor M. Green lost his own election bid to Doyle in 2006, in spite of his desperate attempts to make Justice Butler an issue.

So this was McIlheran's project after all, to show that WMC's hoary talking point is proven to be not only just a wash, but it's been positively superseded by more recent polling data in demonstration of the fact that the 2006 election of Governor Doyle was also a popular endorsement of Justice Butler.

You really have to keep a close eye on these conservative columnists, they can be a pretty sneaky bunch. And since the impending State Supreme Court election is nominally a non-partisan affair, even the support for Butler voiced by a dependable GOP mouthpiece like Patrick McIlheran is legitimate. That alone is a refreshing change.

[Please visit the iT Butler/Gableman archive.]

WMC to restrict WJCIC speech restrictions

In a move that will likely be portrayed as a sop to its several critics, John B. Torinus, Jr. has been added to the State Bar's campaign watchdog committee, the WJCIC. Torinus is a board member of Wisconsin Manufacturers & Commerce (WMC), which last year directed more than $2 million toward the successful candidacy of Wisconsin Supreme Court Justice Annette Kingsland Ziegler.

Ziegler herself recently forfeited a $17,000 settlement in fines and fees pursuant to ethical violations while a judge in Washington County. Ziegler's case remains before her current colleagues, who are considering another panel of Wisconsin judges' recommendation that Justice Ziegler be publicly reprimanded for her ethical lapses.

A number of WMC's fellow travelers, whose common goal is apparently to replace Justice Louis Butler with the virtually unknown Burnett County Judge Michael Gableman, have expressed reservations about the WJCIC's motives and potential effects.

Gableman is being touted in several quarters as the conservative alternative to Butler, who has been breathlessly depicted as a detriment to the "safety, prosperity, and health of the citizens of many states, especially Wisconsin." For his own part, Gableman describes Butler as a "liberal" and an "activist" who "legislates from the bench" based on his "personal sympathies or feelings."

In fact, Gableman attempted to accuse Justice Butler of relying on "The Wizard of Oz" during an online debate Tuesday. Fortunately for Gableman, he has a number of surrogates gathering on the horizon more than eager to do the heavy lifting on his behalf.

A WMC Matrix Unbound?

Meanwhile, a quartet of downtown Federalist Society operatives recently criticized the WJCIC on the op-ed pages of the Milwaukee Journal-Sentinel, decrying the committee's activities as "inappropriate," and urging the candidates not to sign the committee's proffered advertising agreement, which reflects existing Supreme Court Rules on judicial electioneering.

While Butler has since signed the agreement, Gableman said Tuesday he is "in discussions" with the committee.

Rick Esenberg, a newly minted professor of law at Marquette University, has criticized the WJCIC extensively at his widely influential blog, deriding it as "truth police," and suggested that the committee's interpretations of Wisconsin Supreme Court Rules may be unconstitutional according to his reading of a federal case called Duwe v. Alexander. (The one sentence in Duwe that might arguably apply to the present circumstances concerns questionnaires distributed to judicial candidates by Wisconsin Right to Life during a previous election cycle.)

Esenberg is also the author of a memo prepared for the Federalist Society entitled, "A Court Unbound?" That phrase coincidentally happens to be the same (sans the question mark, perhaps as a reply in the affirmative) as the one selected by WMC to promote its statewide series of "breakfast meetings," which kick off February 13. The 11-page memo was praised by an Esenberg research assistant as "the definitive work" on the Wisconsin Supreme Court's recent jurisprudence. [It's actually very well done and doesn't deserve ridicule on that basis, but the praise is completely over the top.]

Additionally, the WMC has produced a video presentation, also entitled "A Court Unbound," featuring Esenberg seated in a book-lined study and pronouncing on a series of philosophical issues.

The one-page .pdf announcing Torinus's addition to the WJCIC is available here. The inevitable shenanigans that will ensue between now and the April 1 election will be available here and elsewhere.

[Please visit the iT Butler/Gableman archive.]

I got Jack Craver's back

Jack Craver of the Isthmus is attacked by a wing-nut:

"Attempting to give this state the worst possible legal environment for business (see Loophole Louie [sic] Butler and lead paint) isn't anti-business?" — McIlheran BFF Steve Prestegard

Prestegard's WMC propaganda is so tiresome. Here we go again:

It's also noteworthy that the two dissenters in Thomas v. Mallett, [so-called conservative] Justices Wilcox and Prosser, "recognize[d] the validity of the risk-contribution theory of recovery articulated by this court in Collins [v. Eli Lilly & Co.]." What they objected to was its extension and application to the facts in Mallett.

Even the two [so-called conservative] dissenters — who were as forceful as could be — affirmed only that the pigment manufacturers "can be held liable for a product they may or may not have produced" and only then as one (potential) "result" of the majority's reasoning. Emphasis added. And in fact they weren't, because the action the Mallett court allowed the child to continue against those manufacturers was ultimately dismissed.

01.06.11: WMC pet outrage tops list of "tort reforms"

And:

Oppose the doctrine, but there's no need to lie about it. On the other hand, if and when WMC launches its advertising campaign in support of Justice Prosser, some attentive reporter might ask WMC why it is endorsing such an enthusiastic proponent of risk contribution theory.

01.27.11: WMC: Still dissembling after all these years

(No reporter did ask WMC that question, by the way.)

WMC authors the Wisconsin judicial ethics rules

Excerpted from testimony before the Wisconsin Supreme Court, with emphases supplied:

The rule in [Caperton v. Massey] was that due process requires a judge to recuse where the judge's impartiality is in question. And in that case, the rule there is that a court must take into account all of the facts and the circumstances surrounding — whether it's spending or a contribution — or whatever other facts are present that are challenging that judge's ability to be impartial.

— Counsel for Wisconsin Realtors Association, 10/29/09

As difficult as it may be to believe, the notorious business outfit Wisconsin Manufacturers & Commerce and the Wisconsin Realtors Association wrote three rules of judicial ethics that were ordered effective by four members of the Supreme Court yesterday.

The order came attached with some more of the court's "writings," this time featuring Justice Bradley squaring off against Justice Roggensack, the latter having helped formed the majority along with Justices Prosser, Ziegler, and Gableman ("the conservatives").

WMC contributed millions to the political campaigns of Justices Ziegler and Gableman, but Wisconsinites needn't pay any mind to the troubling perceptions created thereby, the majority teaches today.

One of the WMC/court's new rules is 60.06(7), which dictates that a judge is not required to stand aside from hearing a case "based solely on any endorsement or the judge's campaign committee's receipt of a lawful campaign contribution, including a campaign contribution from an individual or entity involved in the proceeding."

The other newly created rule is 60.04(8), which confers the same protection upon a judge when an "independent communication" (e.g., one of WMC's infamous issue advocacy advertisements) is produced by a party to the case, or where a party to the case contributed to the production costs of the "independent communication."

(The latter "individual[s] or entit[ies]" are more often than not operating behind a veil of anonymity anyway.)

Amended by the WMC/court is 60.06(4), which already had purportedly prohibited judges from personally soliciting campaign contributions, directing them instead to gathering up cash monies through a committee. Although: "A judge, candidate for judicial office, or judge-elect may serve on the committee but should avoid direct involvement with the committee's fundraising efforts." Emphasis added. It's one of those "aspirational" rules.

Significantly, the amendment allows a judge's fundraising committee (with whose activities a judge aspirationally "should" avoid direct involvement) to drum up cash from contributors "even though the contributor may be involved in a proceeding in which the judge, candidate for judicial office, or judge-elect is likely to participate."

The meaning and potential effect of the latter provision isn't entirely clear. As Justice Bradley (joined by Chief Justice Abrahamson and Justice Crooks, "the liberals") points out:

[U]nder the majority's new rules, which mark a substantial departure from our current practice, judges' campaign committees and perhaps someday even judges themselves will be able to ask for and receive contributions from litigants before the trial has begun and before the judge makes a decision in their case. . . .

Justice Prosser clarified at the January 21, 2010, open administrative conference that indeed the intent is to allow for the solicitation and receipt of a contribution from a litigant with a case currently pending before the judge.

Justice Roggensack, without a hint of irony, pronounced that "Justice Bradley's dissent is a political statement that will foster disrespect for and distrust of the Wisconsin Supreme Court as an institution."

Roggensack criticized Bradley for citing a number of newspaper editorials (nine of them, to be exact, all in substantial agreement) which expressed concern over the majority's move to adopt verbatim rules written by organized corporate interests, effectively "thumb[ing] their noses at the perception of connections between large campaign contributions and the court's integrity, objectivity and credibility," as the Milwaukee Journal-Sentinel had put it.

The majority appears to be largely unconcerned about those public perceptions, and moreover the majority appears unconcerned that those concerns even exist, let alone for those concerns' validity. Nevertheless, perceptions about the courts' objectivity play a substantive role in evaluating due process of law challenges.

A party to a lawsuit is placed in an uncomfortable position where the presiding judge's campaign committee (again, with which the judge "should" not — as opposed to "must" not — be involved) is actively soliciting cash money from the other party. Yet that is precisely a situation the majority's order contemplates and, seemingly, allows.

Justice Roggensack, somewhat inexplicably, claims the new and amended rules are grounded in the right to vote in elections.

But see the well (and rightly so) respected Michael B. Brennan:

Although the judiciary is elected in Wisconsin, it was never intended to directly carry out the wishes of the voters.

The court's remarkable order is available here (.pdf; 28 pgs.).

As usual, more later.

WMC apologist quote of the week

Early on in the most recent Supreme Court race, WMC put Justice Louis Butler in its sights simply because he had demonstrated a taste for judicial activism, particularly aimed at the business liability [sic].

Which is why WMC's ad campaign concentrated on — and falsely portrayed, at the expense of the U.S. Constitution by distorting its system of justice — Butler's record in adjudicating criminal appeals.

Judith Faulkner owes success to WMC.

So, let's see. You deliberately distort a respected judge's record in criminal cases when you don't care for his dispositions in civil ones, and one day Wisconsin is America's tax hell and its "Alabama North" and the next it's the best environment for companies like Epic Systems to thrive in. I guess you have to get pretty deep down in the free market think tank to come up with stuff like that, thus the attendant confusion and memory loss is understandable.

Contradictory proverbs

Epic's target richly deserves such treatment; WMC's role in our recent judicial elections was deplorable.

So far, so good.

Epic's actions are aimed at silencing political expression and preventing political association.

Give me a break. Does anybody actually expect that WMC will be "silenced"? Judging from WMC's own reaction, its True Believers will be energized, if anything. We'll find out soon enough.

And if anybody's trying to "silence political expression," it's Prof. Howard Schweber, who continues to raise implications of illegality on the part of Epic Systems. Could a plaintiff be in the works?

Stay tuned, fans of recreational litigation.

Couldn't have said it better myself

Although I'm sure that I did, many times over, in much greater detail.

Because this is not a conservative blog, I generally don't simply copy and paste giant swaths of text from other sources, but this merits an exception. From an editorial in today's Capital Times:

WMC's ugly meddling in last April's Supreme Court race between Michael Gableman and Louis Butler was simply a blunt and relatively immediate example of its slash-and-burn approach to both Wisconsin politics and Wisconsin's future.

Butler was, by every measure, the more qualified candidate. He was supported by Republicans and Democrats, prosecutors, sheriffs and local judges. He won the lion's share of newspaper endorsements. Why? Because Butler was a balanced and responsible jurist, like the majority of those who have been elected to the highest court by Wisconsin voters.

Butler was of, by and for the Wisconsin tradition of independent judges who serve the people rather than special-interest masters, and WMC attacked him for that.

WMC wanted — and needed — a justice who would act not as a free-thinking and responsible man of the law but as a rubber stamp for the self-serving agenda.

They found what they wanted in Michael Gableman. And they played their part in the foul campaign that narrowly elected one of the least-qualified and least-respected justices in state history.

Additionally:

The Epic officials added, "This is an ethical decision, not a political decision."

There is no reason to doubt the correctness of this statement, or its sincerity.

That's right, there isn't. But that won't deter any number of fabricators from imagining and opining otherwise.

Loophole hooey and the WJCIC

Ever since the President of the State Bar of Wisconsin, Tom Basting, formed a committee (the WJCIC) to monitor the ongoing and future election campaign between Wisconsin Supreme Court Justice Louis Butler and Burnett County Circuit Court Judge Michael Gableman, the First Amendment paranoia has been flying thick and furious.

It's plainly unconstitutional! It's an attempt to regulate speech!! zOMG teh librulz!!!!11 Et cetera, et cetera.

Never mind, apparently, that any regulation of speech is already embodied in Chapter 60 (.pdf; 38 pgs.) of the Wisconsin Supreme Court Rules. What the WJCIC has done is merely distilled from the Rules an advertising agreement which simply reminds the main players to abide by those Rules. It has also, in what seems to me a decidedly innocuous request for a mutual gesture of good faith, asked that the two principals sign and return the agreement.

Now we have Rick Esenberg of Marquette University Law School conjuring an invocation of a "Basting test" according to which, presumably, statements made during the campaign are assessed. No word yet on the actual elements of the mysterious Basting test, although a number of clues may be discerned in the popular press.

In an op-ed piece that appeared ten days ago in the Milwaukee Journal-Sentinel condemning the State Bar's "improper role," four corporate attorneys* from three of Milwaukee's largest law firms weighed in with their extrapolations upon the WJCIC agreement. (I hope it didn't take all four of them to come up with this jeremiad.)

"The pledge [sic] seeks to prevent the candidates from engaging in speech that the eight-person committee believes is false, unfair or otherwise offensive," they write.

It does? The closest thing the agreement comes to presenting the WJCIC as an adjudicator on Truth, Justice, and the American Way is that it charges itself with "reviewing" campaign literature. It presents no such standards of "belief," other than those already set forth in the Supreme Court Rules and those Rules' explanatory commentary.

None other than Esenberg himself commended the op-ed in glowing terms. Esenberg, who assiduously seeks to portray himself as above the fray — and occasionally succeeds — has lent his credentials and views of the State judiciary to Wisconsin Manufacturers & Commerce (WMC), a business group that last year devoted more than $2 million worth of issue advertising in generous service to the successful election of Justice Annette Kingsland Ziegler, the formerly ethically-challenged circuit court judge from Washington County.

In fact it was the often low quality of that campaign's discourse that prompted Mr. Basting to institute the WJCIC in the first place. Something about protecting the integrity of the judiciary and the general view of the legal profession, or some such rubbish. As if the President of the State Bar has any business seeking to insinuate himself into these concerns. The cheek and temerity of that man!

Then WMC is embarking on a February World Tour (.pdf; 4 pgs.), at which Esenberg is the featured speaker, albeit his appearance will be live via DVD, hard copies of which will be distributed to the breakfasting revellers. It's unclear whether the DVD contains only Esenberg's mini-disquisition already available here, or an expanded, unedited version. But I'm sure we'll find out sooner or later.

Meanwhile, writing in Madison's independent weekly Isthmus, columnist David Blaska describes the WJCIC as a "front group" for the State Bar (although he also calls Michael Gableman "Max," which may be a strange, possibly Freudian typo or a personal term of endearment). But does Blaska seek out the actual text of the WJCIC's advertising agreement? Of course not, he takes the four corporate attorneys at their word, quotes exclusively from their J-S op-ed number, and concludes, "Tell the Bar's committee to go pound sand." (Emphasis in original.) Relying on secondary opinions when the primary authority is just as easily available ... great work.

No wonder Charles J. Sykes is evidently a fan (for it was He).

As for the advertising agreement itself, it would be difficult to dream up anything more innocuous or less sensibility-offending.

After a series of “whereases,” the actual statements that the two electioneering principals are urged to endorse are presented in numerical bullet points. Premised as they are in the Supreme Court Rules, I can't imagine anyone objecting to any of these blinding glimpses of the bleedin' obvious, with the possible exception of number five, which reads:

I agree, based upon my personal examination of judicial advertisements, to publicly disavow advertisements that impugn the integrity of the judicial system; falsely or unfairly impugn the integrity of a candidate for the Supreme Court; or erode public trust and confidence in the independence and impartiality of the judiciary by verbally or visually attempting to lead voters to believe that a candidate will decide issues or cases in a predetermined manner.

Donning my strict constructionist hat, I notice that the First Amendment to the U.S. Constitution makes reference to "abridging the freedom of speech." And I'm therefore at a loss to explain how an agreement to "publicly disavow," which necessarily implies more speech, is construed by some as having the effect of "abridging" speech, which means 'lessen.'

Personally, I couldn't care less whether either candidate signs the advertising agreement or not. I honestly don't think it would make much of a difference anyway. But I applaud and support Tom Basting's efforts at maintaining decorum and civility in a campaign where, given the conservative stakes articulated by Esenberg and the WMC, the discourse could very well degenerate in a hurry.

In a number of instances, it already has. Curiously, those instances seem to have emanated from supporters of Michael Gableman. So it makes one wonder what speech, exactly, the WJCIC's detractors are fearful at having "abridged." Mike Plaisted has some ideas.

* A tip o' the cheesehead to the redoubtable and ubiquitous John Foust for pointing out that the apocalyptic four are also actively involved with the Milwaukee Chapter of the Federalist Society (Warning: that last link may frighten children and small animals).

[Please visit the iT Butler/Gableman archive.]

Retiring WMC CEO kills irony dead

WMC leader laments polarized politics — WI State Journal

Sure we do

Paul Soglin writes:

The public does not know who is paying [for] or who is authorizing the "Willie Horton"-style ads that are the characteristic of WMC and its clones.

Except WMC didn't pull the Willie Horton, Mike Gableman himself authorized* the Willie Horton-style ad. Who paid for it is right here.

But money is not the problem. And if money is speech, and if anonymous speech is protected, then anonymous money is protected.

The real problem is liars.

* Upon deep reflection, he claims. One of these days maybe I'll get around to figuring out how exactly this constitutes a defense.

WMC gums up WI Dept. of Justice phone lines

Yet another reason why they're a public menace.

Let's try and keep a line open for crime victims, hey WMC?

Y'know, since you're so terribly concerned about them.

Wis. Sup. Ct. resolves existential dilemma

Question: Can white lead be a design defect in a product (white lead carbonate pigment, a.k.a. house paint) when the product wouldn't even be that product without white lead. Answer: Nope.

Paraphrasing Sartre, "Without lead, there can be no white lead carbonate pigment," said the court.

And, one for the conspiracists:

WMC-supported candidate affirms other WMC-supported candidate

James Buchen can barely get a word in edgewise

Madison's left-leaning Capital Times certainly has a sense of humor.

Last week, Wisconsin Manufacturers & Commerce's vice president of government relations, James A. Buchen, fired off a comically intemperate "news column" complaining that the free speech rights of Wisconsin businesses were "under assault."

This morning the Capital Times reproduced* Buchen's screed on its opinion pages for several hundred thousand more readers.

I think everybody with the means to do so should likewise reproduce, link to, or what have you in solidarity with Mr. Buchen in order to demonstrate the awful, tortious, oppressive, repressive suppression of speech that WMC must endure.

Good lord, what is this country coming to? It's getting so bad, WMC can hardly spend a few million bucks defaming anybody anymore.

* Scroll down to find a Buchenite calling Wisconsin Supreme Court Chief Justice Shirley Abrahamson a "Stalinist" whilst simultaneously accusing "the left" of demonizing the opposition.

Beware Kloppenburg's "radical agenda"

WMC kicks off its 14 days of begging desperately.

My advice is not to read the WMC's ridiculous begging letter unless you have a sense of humor about getting your intelligence insulted.