Courts decide in favor of citizens' rights in two of three different noteworthy cases today...
By Brad Friedman on 6/14/2011, 11:09pm PT  

Good news for Constitutional conservatives such as myself today in two out of three noteworthy court decisions in three separate courts, at least in regards to the rights of we, the people.

Let's start with the two good news items, both related to the Constitutional right to equal protection under the law, and then the not-so-good news item, the one out of Wisconsin, where a predictable partisan divide succeeded in removing rights from American citizens...

CA's Proposition 8

In response to a rather absurd argument by opponents of equal protection under the law in regard to marriage rights, a federal judge in San Francisco ruled that the judge who found California's Prop 8 to be unconstitutional did not need to recuse himself from the case simply because he was gay. Wouldn't, by the same argument, a straight judge have been similarly biased in favor of the law? Of course. The Chief U.S. District Judge found as much, noting that finding otherwise would also require "recusal of minority judges in most, if not all, civil rights cases."


A federal judge in San Francisco on Tuesday upheld retired Judge Vaughn R. Walker ruling on California's Proposition 8, after supporters of the measure accused Walker of being prejudiced in the case.

Sponsors of Proposition 8, California's 2008 ban on same sex marriage, argued that Walker should have been disqualified because he failed to disclose his 10-year relationship with a male partner. Attorney Charles Cooper alleged that Walker, who overturned the same sex marriage ban in January 2010, had a personal interest in the outcome of the case.

U.S. District Court Judge James Ware upheld Walker's ruling that Proposition 8 violated the Constitution's equal protection clause, noting there was no evidence that Walker should have recused himself from the Proposition 8 trial because he was in a same sex relationship.

The ruling was another win for constitutional conservatives such as Theodore Olsen, George W. Bush's Solicitor General, who joined with Al Gore's 2000 Presidential election attorney David Boise to argue a federal constitutional challenge to the state ballot initiative which, for the time being, has brought a halt to same-sex marriages in the Golden State.

Supporters of the ban on equal rights have appealed Walker's original verdict, which is likely to be heard soon by the U.S. Supreme Court

Federal "Defense of Marriage Act" (DOMA)

Another big win for supporters of equal protection under the law was seen in a federal court in San Francisco today, as the federal Defense of Marriage Act (DOMA) was again found to be unconstitutional, this time in an unusual and broad verdict as part of a bankruptcy case.

The same-sex couple challenging the law had been married in the state of California prior to the passage of Prop 8, after a conservative majority on the state Supreme Court had found the state constitution did not allow discrimination against gay couples. When they recently needed to file for federal bankruptcy protection, the federal government argued that DOMA, which requires that same sex marriages are not to be recognized under federal law, blocked the married couple from their right to file jointly.

19 of 24 judges in the Central District court took the opportunity to sign on to the ruling that DOMA unconstitutionally denied equal protection under the law to the couple.

Via The Recorder:

In a rare and sweeping bankruptcy ruling, a federal bankruptcy judge backed by most of his colleagues in the Central District of California has held that the federal Defense of Marriage Act is unconstitutional.

Two legally married California men who filed a Chapter 13 petition to restructure and repay their debts should be allowed to file jointly and should be afforded the same bankruptcy rights as any other legally married couple, held Judge Thomas Donovan.

Eighteen of his 24 colleagues signed on to his opinion, as did one recently retired judge who sits by assignment.
[Judge Catherine] Bauer said it's not unusual for bankruptcy judges in the Central District to sign on to each other's opinions. "It saves a lot of money for folks if they know these judges sign onto this view of the law," she said.

But it is rare for so many judges to sign on to a single decision, said Samuel Bufford, a former Central District bankruptcy judge and now a scholar in residence at Penn State Law.

And it's "highly unusual" for a bankruptcy court to declare any aspect of the law unconstitutional, Bufford added.

Another win for lovers of freedom, liberty, rights and the constitution.

The same cannot be said about what happened in Wisconsin today...

WI's Anti-Collective Bargaining Law

Finally, the bad news, at least for those conservatives who don't believe big government ought to be in the business of stripping rights from citizens.

"Acting with unusual speed," as Milwaukee's Journal Sentinel described today's surprising turn of events, "the state Supreme Court on Tuesday reinstated Gov. Scott Walker's plan to all but end collective bargaining for tens of thousands of public workers."

On the very same day the court decided officially to accept the case, they also issued their verdict. It was a largely predictable one, with all four Right-leaning members on the court siding with Walker and the state GOP which passed the controversial law without the presence of any of the 14 Democrats in the state Senate. All three Left-leaning appointees on the bench joined in the minority dissent.

"Tuesday' 68-page decision was a thicket of concurrences and dissents, reflecting the sharp divide the measure has created in the state itself," writes Reuters.

The state Supremes were asked by Walker to decide the case after a lower court judge invalidated the law. She had found that that the legislature violated the state's open meetings law requiring 24 hour notice before convening to discuss a law in committee. In fact, the committee discussed the law with less than two hours public notice after they'd hastily moved provisions stripping collective bargaining rights of most public unions from a state budget bill (which requires a two-thirds majority to pass) into a stand alone bill that could be passed with a simple majority.

The lawmakers' attempt to take rights away from citizens in the legislation had led to massive protests at the state capital in Madison earlier this year and led Democratic Senators to flee the state in order to deny the Republicans of the quorum needed to vote on a budget bill.

The basis for the court's split decision was somewhat remarkable, as they found that the open meetings law does not actually apply to the state legislature!

Via the Journal Sentinel:

The court found a committee of lawmakers was not subject to the state’s open meetings law, and so did not violate that law when they hastily approved the measure and made it possible for the Senate to take it up.
The court concluded that [Dane County Circuit Judge Maryann] Sumi exceeded her jurisdiction, "invaded" the Legislature's constitutional powers and erred in halting the publication and implementation of the collective bargaining law.

The court added that its role is limited to determining whether the Legislature employed a "constitutionally violative process in the enactment of the act. We conclude that the Legislature did not violate the Wisconsin Constitution by the process it used."

Making the decision even more remarkable, the paper added, until today, "the court had not officially said whether it would even accept the case." But the state legislator had informed the court that, short of a ruling today, they planned to move the union-stripping measures into a different piece of legislation which they vowed to take up this evening.

Of course, Justice David Prosser, a former colleague of Walker's, added what appeared to be partisan heat to the decision by including his own concurrence with the majority. Prosser, in one breath during his recent election campaign, promised fealty to the Governor and his legislative agenda. In all the other campaign breaths, the hard right Partisan, somewhat laughably, claimed to be a judicial independent.

Prosser's concurrence did little to underscore his lack of partisanship.

"David Prosser, whose recent reelection to the state's high court had been hotly contested by opponents of the union measure," reports Reuters, "wrote in his eight-page concurrence that GOP legislators had good reason to rush things they way they did, given the ugly mood of protesters at the Capitol."

The three in dissent blasted the order to overrule the lower court, saying it was "based on errors of fact and law.

"They inappropriately use this court's original jurisdiction, make their own findings of fact, mischaracterize the parties' arguments, misinterpret statutes, minimize (if not eliminate) Wisconsin's constitutional guarantees, and misstate case law, appearing to silently overrule case law dating back to at least 1891," the three said.

"It is long on rhetoric and long on story-telling that appears to have a partisan slant," Chief Justice Shirley S. Abrahamson wrote of Justice Prosser’s opinion, as noted by the New York Times. "This kind of order seems to open the court unnecessarily to the charge that the majority has reached a pre-determined conclusion not based on the facts and the law, which undermines the majority’s ultimate decision," she wrote.

Though the law will take affect immediately, it is likely to be challenged in court again for different reasons.

Nonetheless, Firedoglake's David Dayen spared no ire for the court's decision today, which he described as "a total abdication by the branch designed to settle disputes of this nature."

"What we have here is a court saying 'If the Legislature does it, then it’s not illegal,' he wrote, before concluding in despair:

So the fix is in. It shows you why that state Supreme Court election, which resulted in a narrow victory for Republican David Prosser, was so important. The Wisconsin Supreme Court looks to be a complement to Scott Walker and his agenda, a backstop for whatever actions they choose to take.

Certainly this could add fuel to the [upcoming recall elections of 6 Republican and 3 Democratic state Senators]. But public employees have lost most of their collective bargaining rights, and unions will wither in the state as a result. Scott Walker may lose a few battles, but he’s won the war.

As readers of The BRAD BLOG likely know, we covered the dubious results and subsequent disastrous "recount" of the incredibly close April 5th state Supreme Court election between Prosser and Asst. Attorney General JoAnne Kloppenburg in tremendous detail over the past several months, even as the "cascade of widespread irregularities" and failures of the state's e-voting system were largely ignored by the entirety of the mainstream media.

Kloppenburg conceded the race on May 31, despite thousands of votes found to have been originally mis-tallied, far more discovered in "wide open" or ripped, unsealed, duct-taped and otherwise defective ballot bags and poll tapes after a "recount" where hundreds of official, on-the-record objections and evidentiary exhibits were never reviewed by the state election authority before they certified the results of the contest as "correct".

The victory for the incumbent Prosser to a new 10-year term assured the 4 to 3 balance in favor of the Republican agenda in Wisconsin on the state's Supreme Court, even when that agenda includes the legislative removal of rights from citizens --- the same thing that Republicans pretend to be against when it comes to things like the federal "Patient Protection and Affordable Care Act" passed last year by the U.S. Congress and signed into law by President Obama.

CORRECTION: We had originally referred to "Republican-appointed" and "Democratic-appointed" justices on the WI Supreme Court when, in fact, they are actually elected rather than appointed --- as we know all too well, but managed to get it wrong in the above anyway.