Activist right-wing judge threatens to thwart democracy by legislating from the bench in favor of Walker...
By Ernest A. Canning on 1/18/2012, 1:13pm PT  

Guest blogged by Ernest A. Canning

Fed up with the hard-right's oligarchic, union busting agenda, on Tuesday, opponents of Wisconsin's Gov. Scott Walker (R) delivered a Recall petition to the state's Government Accountability Board (G.A.B.) containing more than one million signatures --- approximately 459,792 more than the 540,208 valid signatures required to trigger a statewide gubernatorial recall under WI law.

Those one million signatures are about to run into an attempted roadblock, however, courtesy of two questionable rulings by Republican Waukesha Circuit Judge J. Mac Davis in the Friends of Scott Walker vs. Brennan case.

The Judge's first questionable ruling was to deny the state Democratic Party's motion to intervene as defendants in the case. The second ruling, issued orally, also found in favor of the GOP, aspiring to force a significant delay in the process of validating signatures (and, therefore, the recall election itself) by shifting the statutory burden for challenging the validity of signatures from Walker to the G.A.B. That second ruling is in direct contradiction to decades of recall history in the Badger State and upends existing law --- a law that went unchallenged by Republicans previously, and worked rather well, even as recently as last year's recall elections of 6 GOP state Senators and 3 from the Democratic Party.

Both rulings, currently the subject of an appellate challenge by the Democrats, may border upon judicial misconduct by a partisan jurist with disturbing ties to a previous statewide scandal...

The GOP Republic of Waukesha

In "The 'Judicial Independence' of Justice David T. Prosser - A BRAD BLOG Special Investigation", we documented the hornets nest of corruption that linked WI Supreme Court Justice David Prosser ("The Waukesha Strangler") with Scott Jensen his former number two man in the WI legislature and former subordinate in the Republican Assembly Caucus as well as Waukesha County Clerk Kathy Nickolaus and the criminal misuse of state employees for partisan gain. We noted that Prosser, as a sitting member of the WI Supreme Court, not only took the extraordinary step of appearing as a witness for the accused criminal defendant, Jensen, but, testified that he, Prosser, had participated in the crime himself --- albeit, his confession came only after the statute of limitations for his crime had run out.

Walker was not the only sitting jurist to come to Jensen's aid. Another was none other than Waukesha Circuit Judge J. Mac Davis, who had served in the WI Senate for 20 years.

In March 2006 Jensen was convicted in Dane County Circuit Court of three felony counts entailing misconduct of public office and a misdemeanor for his misuse of public funds. He was sentenced to 15 months in prison.

Jensen's felony convictions were overturned on appeal in 2007 based on improper jury instructions. The circuit court had instructed the jury that "a legislator's use of state resources for campaign purposes established that the legislator obtained a dishonest advantage." This improperly "constituted a mandatory conclusive presumption," the court of appeal stated.

The court of appeal noted that Jensen did not appeal his misdemeanor "conviction for Intentional Misuse of Public Position for Private Gain." It remanded the case for a new trial on the felony charges.

Upon remand, Jensen moved for a change of venue based on a politician-friendly venue law which was passed by the WI legislature while the Jensen appeal was pending. The statute permitted individuals charged with "violations arising from or in relation to elections, ethics, and lobbying regulation laws" to be tried in their county of residence, rather than the county where the crime (Dane County, home of the state capital) was allegedly committed.

Both the circuit court and court of appeal denied Jensen's motion concluding that the statute did not apply to the charges pending against Jensen. On May 20, 2010 in State v. Jensen, the WI Supreme Court reversed the ruling, finding that Jensen was entitled to be tried in Waukesha County, the Republican-friendly enclave. There, Jensen entered a plea deal with the the Republican DA of Waukesha, Brad Schimel, in which two of the felony counts were dismissed, another was reduced to a civil forfeiture. In the end, Jensen, unlike several of his subordinate colleagues who had actually cooperated with prosecutors, was able to evade jail time.

Fast forward to the Walker Recall. As detailed in a second appellate motion for an emergency stay [PDF], filed by the Democratic Party and the various committees in support of the Walker recall, the GOP-dominated WI legislature passed yet another politician-friendly venue statute:

Historically, lawsuits against the State or its agencies were required to be brought in the circuit court encompassing the State's Capitol. Last year, [the venue statute] was amended to permit a plaintiff suing the state to pick any county...if the 'sole defendant' is the state, its agencies, agents, etc.

Had the Democrats been allowed to intervene and added to the suit as defendants, the case might then have been moved, as per WI venue laws, out of Waukesha County and to the impartial judiciary in Dane County. In their emergency stay motion, the proponents of the Walker Recall argue not only that Judge Davis erred in denying their initial motion to intervene but that, in doing so, he allowed himself to retain personal control over the case.

Activist Judge Davis legislates from the bench

The premise of the "Friends of Scott Walker" case is that the burden of proof for examining signatures for fraudulent entries should not be on them, but rather on the state election agency, the G.A.B. In filing their suit in Waukesha County, the "Friends of Scott Walker" appear to have successfully found another friend of Scott Walker on the bench to rule in this case.

With all due respect, Judge Davis' oral bench ruling, however, which is appended to the appellate emergency stay motion, is striking both for hypocrisy and fundamental violations of basic rules of statutory construction.

In justifying the standing of the "Friends of Scott Walker", Davis stresses that "any qualified elector would be entitled to seek certain declarations of rights relating to the elector process and their voting franchise." Thus, he concluded, the "plaintiffs have a specific, immediate interest in the application of the laws and the administration of the laws respecting the recalls at this time."

But if the "Friends of Scott Walker" have a specific, immediate interest in...the administration of the laws respecting the recalls," do not the opponents of Walker also have such "a specific, immediate interest in...the administration of the laws respecting recalls?" How could any impartial jurist extend that right to the Republican "friends," yet deny that same right to the Democratic opponents?

Judge Davis ruled that the voters would be adequately represented in the case by the G.A.B., the agency which is statutorily designated to simply oversee the statutorily-designed process, rather than argue in favor or against any particular statute.

But the inconsistency of allowing the "immediate interest" of Walker supporters be heard, while Walker opponents are ignored actually pales in comparison to Judge Davis' violations of basic rules of statutory construction in which he essentially rewrote Section 9.10 of the WI statute, which governs Recalls.

Section 9.10(2)(e) mandates that the G.A.B. examine the face of the Recall petition so as to insure that a signature was properly and timely dated; that residency can be determined from the address given, etc. However, when it comes to the burden of proof for challenging signatures, the language of the statute, which is the first thing a court looks to as standard statutory construction, could not have been more clear and unambiguous.

Section 9.10(2)(g) states [emphasis added] that the "burden of proof for any challenge [of a petition signature] rests with the individual bringing the challenge." 9.10(2)(h) mandates that any "challenge to the validity of signatures on the petition shall be presented by affidavit or other supporting evidence."

One would think that the words "burden of proof...rests with the individual bringing the challenge" would be fairly straightforward. Yet, as observed by Marquette University Law Professor Edward Fallone, the activist Judge Davis appears to have rewritten the statute from the bench by ruling that it is the G.A.B. which must take "affirmative steps to identify and strip duplicate, fictitious or unrecognizable signatures as it reviews the recall petitions."

Shockingly, Judge Davis asserts the burden of proof language of Section 9.10(2)(g), simply reflects "an empowerment to the challengers" --- this, despite the fact, as observed by Fallone, that "challenges may be brought for grounds other than those specifically listed. That would include challenges based on the assertion that the name on the petition is fictitious or unrecognizable." Fallone adds [emphasis in orig.]:

The statute means just what it says. The GAB must identify those defects that can be determined from the face of the recall petition itself and that render a signature ineligible to be counted even if it is not challenged.

Judge Davis did nothing less than shift the very burden that the well-worn statute expressly imposes upon Walker back over to the G.A.B. The ruling upends decades of state law which has never been challenged by the Republicans before. In fact, in their own efforts to recall Democrats last year and in years prior, they appeared quite satisfied with the burden of proof being placed upon the candidate up for recall, rather than the state election agency.

Unnecessary delay; endless litigation

It should be noted here that the statutes, as previously written, already allow for a party faced with a recall attempt to apply to the court for more time to review signatures, as needed. With the historic number of more than one million signatures filed on Tuesday in the Walker Recall, such an extension would likely have been granted by the court if Walker had requested it.

Instead, Walker went searching for another way to add delay and introduce chaos into the process.

In their appellate motion for an emergency stay, the Recall proponents note that the G.A.B. has already announced it is developing new, yet-to-be-defined procedures in order to try and meet Judge Davis' activist ruling. This will extend the time needed to review the petitions, at a minimum, from the statutorily anticipated 31 days to a minimum of 60.

Marquette University's Fallone adds:

The GAB is in effect re-writing the rules as it goes along, without any legislative guidance. At the same time, the GAB must keep looking over its shoulder at Judge Davis, because it is likely that the Friends of Scott Walker will challenge the adequacy of the new procedures in court no matter what the GAB does

But that's the point. With polls showing 58% of respondents in WI favor Recall, delay and endless litigation provide the immensely unpopular, Koch-supported governor with a means to cling to power beyond the time envisioned by existing statutes, and in violation of the rights of Badger State voters.

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Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam vet (4th Infantry, Central Highlands 1968). Follow him on Twitter: @Cann4ing.

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