Friday, September 26, 2014

Feels like Stephen King, Jon Stewart writing WI Doe case end-game

The right has successfully tipped the scales when it comes to Wisconsin elections, ballot-box fairness and crucial judicial reviews, too.

There's no way around that conclusion. The state's procedural checks and balances have been replaced by checks, from big balances.

Here's how and why:

Now that the federal courts have said it's a state issue, it's likely that the Wisconsin Supreme Court will ultimately decide whether an investigation by several prosecutors into possibly illegal coordination between Scott Walker's campaign and big-dollar donor groups can continue.

That investigation could determine whether Gov. Walker can remain in office.

With that in mind, give careful consideration to these paragraphs from the Journal Sentinel story today that explains how some of the same donor groups fighting to terminate the investigation have also given gobs of money to the campaigns of a majority of the Supreme Court that could review the investigation:

Among the groups mentioned in the investigation are three that have spent heavily in court races to elect four of the court's seven justices. The Wisconsin Club for Growth is estimated to have spent $400,000 for Annette Ziegler in 2007; $507,000 for Michael Gableman in 2008; $520,000 for David Prosser in 2011; and $350,000 for Patience Roggensack in 2013.
Citizens for a Strong America spent an estimated $985,000 to help Prosser. That group was funded by the Wisconsin Club for Growth, which prosecutors have described as a "hub" that distributed funds to allies.
Wisconsin Manufacturers & Commerce, which has received some funding from the Wisconsin Club for Growth and is the state's largest business lobbying group, spent an estimated $2.2 million for Ziegler; $1.8 million for Gableman; $1.1 million for Prosser; and $500,000 for Roggensack.
The estimates come from the Wisconsin Democracy Campaign, a group that tracks political spending and lobbies for more campaign finance regulations.
So you say - - 'well, those justices have to step aside, recuse themselves.'

Not so fast.

Under Wisconsin judicial procedure, the Supreme Court justices themselves determine whether they are in a conflict-of-interest situation by adopting rules to guide their recusals.

The current rules putting the judges in charge of their own ethical enforcement were written at the Court's request by big outside, generally pro-GOP groups, including the WMC which heavily donated to a majority of the Court - - Prosser, Ziegler, Roggensack and Gableman - - as the Journal Sentinel story reported today.

Here is how I wrote about and documented this complete State Supreme Court recusal procedure absurdity a few months ago - - and then you tell me if you think the playing field here is anything but tilted.

As you process the news that the conservative majority on the Wisconsin State Supreme Court Justices today validated Wrong-Way Walker's rollbacks of voting and collective bargaining rights - - and that several of the same Justices' campaigns were significantly funded by the WMC and other corporate special interests which also heavily back Walker - - do not forget that these same Justices let the WMC and the Realtors write for the Court a new ethics rule defining when - - basically, never - - recusals were in order by Judges and Justices to reduce conflicts-of-interest and enhance the appearance of fairness.

Yes, you read that right:
In response to [a tougher, independent proposal], the Wisconsin Realtors Association (“Realtors”) and Wisconsin Manufacturers & Commerce (“WMC”) filed separate petitions.[4] The petitions sought to amend the Judicial Code of Conduct to provide that recusal is not required in a proceeding based solely on any endorsement or receipt of a lawful campaign contribution from a party or entity involved in the proceeding. The petitions also sought clarification that a judge does not need to seek recusal where it would be based solely on a party in the case sponsoring an independent expenditure or issue advocacy communication in favor of the judge.
In a 4-3 decision,[5] the Wisconsin Supreme Court denied the League’s petition and adopted the Realtors and WMC’s petitions. In a dissenting opinion, Justice Ann Walsh Bradley, joined by Chief Justice Shirley Abrahamson and Justice N. Patrick Crooks, criticized the majority’s decision to adopt the rules calling it “a dramatic change to our judicial code of ethics.”[6] In particular, the dissent took issue with the majority’s decision to adopt petitions “proposed by special interest groups.”[7] Dissatisfied with the majority’s decision, the dissent urged the Legislature to “engage in further study of judicial recusal.”[8]

The Center for American Progress surveys the states on judicial ethics, gives Wisconsin an "F," and slaps David Prosser's face at the top of the Internet version of the report. 

Read it here:
Wisconsin: F (35 points) 
Wisconsin received a failing grade after its state supreme court adopted a recusal rule that literally instructs judges not to recuse themselves from cases involving campaign contributors.  
In 2010, the four-justice conservative majority on the Wisconsin Supreme Court voted to institute a recusal rule written by the Wisconsin Realtors Association and Wisconsin Manufacturers & Commerce, a group that subsequently donated nearly $1 million to support conservative Justice David Prosser’s re-election in 2011. The rule says that recusal is not required “based solely on … a lawful campaign contribution.”  
The majority’s comments that accompany the rule say that requiring recusal for campaign cash “would create the impression that receipt of a contribution automatically impairs the judge’s integrity.” In other words, the four justices in the conservative majority are worried that mandatory recusal would lead the public to think that judges are biased.
It's a political mobius strip, a trap. The foxes built the hen house, moved in, expanded it, locked the door - - and get to decide if they've done the right thing.

Look at it this way: 

Suppose the Wisconsin Badgers were in the Rose Bowl playing the Washington Huskies, and the game, which had been tied through 59 minutes, was going to be decided by a last-minute review of a Huskies' touchdown.

The referees huddle to make their decision, and you know already that Huskies' boosters had given most of the refs large payments that helped them hold on to their jobs.

Fair? Ethical? In America?


Anonymous said...

I am just an average citizen, talking with other average citizens. Everyone I've spoken with sees that the huge sums given to the four justices makes them unable to handle this case without the appearance of corruption.

It doesn't matter if laws have been put into place to support their avoidance of recusal. It still smells like corruption.

Can those of you who are good writers get this story out to the world? Even more than it is out there, for I heartily thank those of you who are already trying to publicize this. Perhaps the corrupt or ostensibly corrupt justices will be afraid to do dirty deeds if the whole world is watching.

MadCityVoter said...

A political consultant copies some of his own boilerplate language from some of his own previous policy documents into a gubernatorial candidate's economic plan and the state's largest paper flogs the story online and in print for days and days. "Plagiarism, plagiarism!" it cries, even though it's nothing of the sort, and conveniently ignores the many examples of the candidate's more experienced opponent doing exactly the same thing, or worse.

A highly partisan majority of our state Supreme Court justices adopt rules written by their major political supporters that essentially allow these partisan players to take their cases before sympathetic, fully paid-for, partisan hacks and it's crickets from the state news media. Plagiarism? Ha! Try "corruption" and "perversion of the judicial process," for a start. Absolutely disgusting.

Oh -- but nice people don't talk about ALEC. The slimeballs prefer it that way.

Anonymous said...

Can anyone put in plain English what this means?

Anonymous said...

If these justices don't recuse themselves I suspect that all hell will break out in Madison. This would be so blatantly unfair and unjust that I think even non- politically minded people would see this as the biggest Walker transgression ever. At some point the Dept. Of Justice would have to step in and investigate as this would absolutely be a nationwide joke! Any hopes, false as they may be, by Walker to seek higher office would be lost as the rest of the nation would realize this was a devious tactic that is so indecent that Walker utilized to cover his gross wrongdoings!

Jonathan Swift said...

Come on folks, do you really believe that judges can be influenced by exhorbitantly large amounts of bribery. Clarence Thomas doesn't believe so and he should know.

Anonymous said...

Anon 4:09pm - I'm not a lawyer, but I've been trying to follow this closely, so I'll take a crack at it... (corrections/clarification welcome and encouraged!)

1) As part of John Doe 2, Schmitz (Prosecutor) subpoenaed O'Keefe/Club for Growth, et al
2) O'Keefe responded with a tsunami of litigation at both State and Fed levels trying to stop the subpoenas (he has something to hide)
3) Peterson (WI judge overseeing John Doe 2) blocked the subpoenas; I think he ruled they were too broad
4) Schmitz appealed Peterson's decision to the WI Appeals Court (these are the folks who issued the order today)
5) Before the WI Appeals Crt could rule on this, O'Keefe filed a petition to the WI Supreme Crt asking them to take it over without waiting for the Appeals Crt
6) The WI Supreme Crt has been sitting on their hands not doing anything while the Federal case was underway. The Fed case just wrapped up this week, putting the issue back to the WI courts... question then becomes, is it on the WI Appeals Crt or Supreme Crt?
7) This document is the WI Appeals Crt saying that they are going to defer to the WI Supreme Crt. The Supremes can kick it back to the Appeals Crt if they wish, but for now everyone's waiting on them. (At least now we know who's holding the potato.)

The thing I'm unclear on-- Today's ruling say's we're waiting on the WI Supreme Crt to decide what it wants to do with these particular subpoeneas.
Righties (and media outlets) are saying that John Doe 2 is "on hold" because of this, but I don't think these rulings do anything to stop the investigation as a whole. Rather, it's just several particular subpoenas that are at issue.

Anonymous said...

I really appreciate your time in explaining this. Thank you very much!

Jake formerly of the LP said...

I think your last sentence is correct- there's plenty of evidence to hang CfG with on coordination before they answer a subpoena.

What CfG is hoping to do is to have the Supreme Court make up a ruling saying that laws against coordination, disclosure and contribution limits to candidates be made illegal. Of course, the fact that most of the judges on the Court OWE THEIR CURRENT JOB TO CfG makes it a bit of a conflict of interest.

Dems should be pre-emptying the rightie justices by shouting "recusal" at every turn. But in the meantime, there's nothing stopping investigators from charging O'Keefe and others tomorrow. SO DO IT

Dan said...

Yes, charge them now!

Anonymous said...

Jake/Dan - I agree with the observation that Schmitz has enough to indict O'Keefe, as well as the sentiment of wanting it to happen sooner than later.
For better or worse, though, I don't take Schmitz as being Machiavellian enough to do this before the elections. He's already being attacked (speciously) for a "partisan witch hunt" and dropping charges before Nov would just add fuel to that argument. It's unfortunate and stupid, but think of the newspaper headlines, how that would play with the low-info crowd, etc. Hell, knowing the Waukesha County/FoxNews-types, dropping charges now might actually help Walker's election chances.
If Schmitz thinks there's a real possibility that the WI Supreme Court might expand the issue to rule on broader campaign finance/disclosure laws (as Jake suggests; and I have to agree that the Supreme Crt is Machiavellian enough to pull a stunt like this), maybe there's a smarter/more subtle option...
Schmitz could drop his appeal and withdraw the subpoenas. Then the Supreme Crt would have nothing to rule on! And he could continue the John Doe thru other avenues, possibly re-drafting these subpoenas in such a way that they'd have a better chance of standing up.
Just wanted to throw that out there as an option; maybe just to give some of us hope if we're waiting a while for charges to drop.