Tag Archives: Michael Gableman

Supreme Court deals Walker a blow on education case

A divided Wisconsin Supreme Court dealt Gov. Scott Walker a loss yesterday in upholding a ruling that preserves the independence of the state’s elected education secretary and denies the governor power of veto over the Department of Public Instruction.

The court’s conservative majority was split on whether to overturn its unanimous ruling from 20 years ago that solidified the state superintendent’s independence as head of the Department of Public Instruction. The high court’s 4–3 decision rejects arguments made by Republican Attorney General Brad Schimel and upholds two lower court rulings.

The state constitution “requires the Legislature to keep the supervision of public instruction in the hands of officers of supervision of public instruction,” Justice Michael Gableman wrote for the majority. “To do otherwise would require a constitutional amendment.”

Superintendent Tony Evers has opposed overturning the law, saying the case was about preserving the office’s role as a nonpartisan constitutional officer in charge of implementing and overseeing education policy.

Evers hailed the ruling, calling it a “victory for public education and the future of our state.”

“More than anything else, this ruling provides much needed stability for our schools and the students they serve,” Evers said in a statement. “I hope we can now get back to focusing on what works best for our kids.”

Walker’s spokesman Tom Evenson did not address the court’s ruling directly in his reaction. Instead, he said Walker would “continue to advocate for policies that prioritize student success.”

“Governor Walker is dedicated to challenging the status quo when it impedes the ability of parents, school boards, and students to get the best educational outcomes,” Evenson said.

Justice Department spokesman Johnny Koremenos said the agency is reviewing the decision and has no immediate comment.

The case focused on a 2011 law passed by the Republican-controlled Legislature and signed by Walker that gave the governor veto power over administrative rules pursued by the state superintendent. That raised questions about whether the law amounted to a violation of the 1996 state Supreme Court ruling that the office was independent of the governor’s control.

The state Justice Department argued that if the court’s 1996 ruling prohibits the Legislature from making a change to administrative rules, then the decision should be overturned. The department’s attorney argued that if the state superintendent is unhappy with the governor’s decision relative to rules, he can always go back to the Legislature and try to get it reversed.

The law is unconstitutional because it does not allow DPI and the secretary “to proceed with their duties of supervision without the Governor’s, and in some circumstances the Secretary of Administration’s approval,” Gableman wrote.

The 2011 law required all state agencies to get approval from the governor before drafting new administrative rules — the legal language that enacts agency policies and laws passed by the Legislature. Under previous law, the rules were written by state agencies and reviewed by the Legislature, but not the governor, before taking effect.

Parents and members of the teachers’ union, with backing from organizations representing school administrators and school boards, filed a lawsuit in 2011 challenging the portion of the law that gives the governor the ability to block rules at DPI. They argued that the law gives the governor more power than the independently elected state superintendent, contrary to the court’s 1996 ruling.

The 1996 ruling arose from a case challenging then-Gov. Tommy Thompson’s attempt to transfer powers from DPI into a new Department of Education under the control of the governor. At the time, the court unanimously ruled that the state superintendent is in charge of education policy in Wisconsin and that the governor and Legislature can’t give “equal or superior authority” to anyone else.

Those supporting the governor’s position and opposing Evers include School Choice Wisconsin, a group that advocates for taxpayer-funded vouchers to attend private schools, and the state chamber of commerce.

Gableman was joined in the majority ruling by Justices David Prosser, Anne Walsh Bradley and Shirley Abrahamson. Those dissenting were Chief Justice Pat Roggensack and justices Annette Ziegler and Rebecca Bradley.

The dissenting justices argued that those challenging the law had not proven that it was unconstitutional.

Special prosecutor moves John Doe ruling a step closer to U.S. Supreme Court appeal

A special prosecutor has asked the Wisconsin Supreme Court to reconsider its decision ending an investigation into Gov. Scott Walker’s recall campaign, a move that signals he may take the case all the way to the U.S. Supreme Court.

The state Supreme Court ended the investigation into Walker’s 2012 recall campaign and more than two dozen conservative groups on July 16, saying they had not violated campaign finance laws by working closely together. The ruling was a big win for Walker, coming just days after he officially launched his presidential campaign.

Online court records show Francis Schmitz filed a motion Tuesday with Wisconsin’s highest court to put that decision on hold and reconsider the ruling.

The state Supreme Court ended the investigation into Walker’s 2012 recall campaign and more than two dozen conservative groups on July 16, saying they had not violated campaign finance laws by working closely together. The ruling was a big win for Walker, coming just days after he officially launched his presidential campaign.

Online court records show Francis Schmitz filed a motion Tuesday with Wisconsin’s highest court to put that decision on hold and reconsider the ruling.

The probe had been on hold for 18 months after the judge overseeing the investigation ruled that no laws had been broken. But the Supreme Court’s 4–2 ruling ended it for good. The court, which is controlled by a majority of conservative justices, broke along ideological lines to find in support of the Walker recall campaign.

Part of the court’s ruling ordered Schmitz and prosecutors to return all evidence collected during the investigation and destroy any copies. Schmitz’s request that the ruling be put on hold would delay that.

The original investigation, known as a John Doe, was secret and many of the court filings have not been publicly released. Schmitz’s actual motion was under seal pending a determination by the court as to whether it should be made public.

Schmitz did not immediately return a message seeking comment Wednesday. Todd Graves, the attorney for the Wisconsin Club for Growth that filed a lawsuit challenging the probe that went to the Supreme Court, declined to comment.

The filing comes as Walker prepares to take part in the first Republican presidential candidate debate on Thursday night in Cleveland.

Schmitz’s filing is the clearest sign yet that he may ultimately ask the U.S. Supreme Court to take the case.

Schmitz had asked that two state Supreme Court justices — Michael Gableman and David Prosser — recuse themselves from the case because their campaigns for the high court benefited from millions of dollars spent by at least three groups that were investigated.

The court denied the request with no explanation the same day it issued its ruling, written by Gableman and supported by Prosser. That could form the basis of an appeal by Schmitz to the U.S. Supreme Court.

The Wisconsin Club for Growth is estimated to have spent more than $1 million for Gableman and Prosser. Another group that was part of the investigation, Wisconsin Manufacturers & Commerce, spent nearly $3 million for the campaigns of the same two justices. And a group funded entirely by Wisconsin Club for Growth, Citizens for a Strong America, spent nearly $1 million to help Prosser.

The groups also contributed to the other Republican-backed justices who signed on to Gableman’s opinion, which did not deny that the groups coordinated their fundraising activities with Walker’s campaign, but rather that the law prohibiting it was unconstitutional.

Investigators: Walker’s office ‘obstructed’ probe of funds stolen from veterans charity

Investigators in the closed John Doe probe argued in a federal court brief filed on Friday that Scott Walker’s county executive staff “obstructed” its efforts to investigate missing donations to a veterans fund. The court brief includes recently unsealed investigative records.

Walker’s office did not respond to a message left Friday evening asking about the allegations that his office failed to cooperate in investigating the veterans-fund thefts. In 2012, the Milwaukee Journal Sentinel reported that a Walker spokeswoman denied that his office was uncooperative with the probe, and Walker has denied the allegation in the past.

On Friday, chief investigator David Budde and investigator Robert Stelter reaffirmed that the John Doe investigation began after one of Walker’s top staff reported funds missing from “Operation Freedom,” an annual event held by Walker’s office to thank veterans for their military service.

The prosecutors maintained that the secret probe was necessary only because Walker’s office “was uncooperative and obstructed the District Attorney’s Office’s efforts to obtain documentation of the County’s receipt and disbursement of donations from Operation Freedom.”

“As a consequence, the District Attorney’s Office was forced to petition a John Doe proceeding in order to have legal mechanisms to obtain relevant documentation from the County Executive’s Office,” they argued.

Two Walker associates — former Deputy Chief of Staff Tim Russell and former veterans’ commission member Kevin Kavanaugh — were convicted of stealing more than $70,000 in donations from Operation Freedom. Four others, including Walker’s former deputy chief of staff, Kelly Rindfleisch, were convicted on a variety of other charges.

The filing in U.S. District Court in Milwaukee also revealed that Archer and Walker’s then-campaign treasurer John Hiller were under criminal investigation five years ago for their actions involving the proposed lease of office space by Milwaukee County that would have benefited real-estate clients of Hiller’s who had donated to Walker’s gubernatorial campaign.

The Wisconsin State Journal reported in October that Archer had given Hiller inside information about a pending bid for office space and that Walker was aware of the activity. That report was based on thousands of pages of emails released from the investigation, which ended in 2013

Milwaukee County ultimately decided not to rent the additional office space, and no one was ever charged in connection with the 2010 request for proposals.

“A Democratic district attorney who’s looked at this issue for two years 20 months ago … closed that case because he didn’t find any reason to go forward. I think that speaks volumes,” Walker told the Wisconsin State Journal at the time.

A new look

The documents filed Friday came in response to allegations Archer made in a lawsuit filed July 1 in Milwaukee County Circuit Court alleging that prosecutors led by Chisholm have engaged in a “continued campaign of harassment and intimidation” against Archer and other Walker supporters.

But the newly released documents reveal that the criminal investigation into the activities of Walker and his staff began before he was elected governor in 2010.

Archer’s lawsuit claims she was subjected to unwarranted investigation, including a Sept. 14, 2011, “raid” of her Madison home, as retaliation for her work with Walker on writing Act 10. Walker introduced the bill in February 2011 shortly after taking office.

But Budde and Stelter provided John Doe records unsealed July 10 by John Doe judge Neal Nettesheim showing the investigation into Archer’s activities began months before Walker’s surprise introduction of the bill that sparked weeks of protests at the Capitol.

The federal court filing on Friday also revealed new information about the now-closed investigation into the activities of Scott Walker and his staff when he was the Milwaukee County executive.

Although the investigation initially was launched to probe the missing veterans funds, prosecutors repeatedly enlarged it as they came across illegal campaign activity by Walker staffers, possible bid rigging and improper campaign contributions. Walker was never charged.

The records show Archer’s Milwaukee County office was searched in December 2010 for evidence that she had worked on Walker’s gubernatorial campaign while on county time and at her county office on “multiple occasions over a sustained period of time” when she served as director of the County Department of Administrative Services.

The filing also included a tape recording made of Archer’s interactions with officers during the search of her home, which was conducted by the FBI and members of the Milwaukee County and Dane County district attorneys’ offices. The recording was not available online late Friday.

In their brief, Budde and Stelter revealed that the Archer investigation involved not only possible bid rigging and suspected illegal campaign activity but also possible violations of the state open records law, which Walker secretly attempted to repeal retroactively while drafting the 2015–17 biennial budget. The brief said a criminal complaint was drafted naming Archer “and others” with two counts of conspiracy to commit misconduct in public office and one count of solicitation to commit misconduct in public office, but Chisholm’s office decided not to file it.

“While the District Attorney’s Office ultimately decided not to issue the draft criminal complaint, it reflects the good faith basis all defendants had in investigating Archer’s conduct for Milwaukee County,” the two argued.

The filing also showed that two weeks after the search of her home, Archer signed a proffer letter in which she agreed to provide information to the district attorney’s office of  “criminal activity in the Milwaukee area and elsewhere” in exchange for a promise that the interview would not be used directly against her in any criminal or civil proceeding.

The prosecutors being sued by Archer for alleged harassment want the case moved to U.S. District Court in Milwaukee. The prosecutors told U.S. District Judge Lynn Adelman that the lawsuit belongs in federal court because the allegations involve alleged federal civil-rights violations.

A second John Doe investigation into coordination between Walker’s recall campaign and conservative political groups was halted in July by the Wisconsin Supreme Court’s conservative majority, all four of whom had received a total of about $8 million in donations from the conservative groups under investigation. In Justice Michael Gableman’s majority ruling, he denied that coordination between campaigns and dark money groups was ever illegal, despite U.S. Supreme Court rulings to the contrary.

Why John Doe prosecutor should appeal to the U.S. Supreme Court

Special prosecutor Francis Schmitz has an obligation to appeal the decision by the Wisconsin State Supreme Court to dismiss the John Doe investigation. That decision legalized coordination between candidates and outside groups so long as those groups don’t say “Vote For” or “Vote Against” a certain candidate.

Schmitz was investigating alleged coordination between Scott Walker and several outside groups during the recall elections in 2011 and 2012, but the Wisconsin Supreme Court ordered him to close that investigation.

Schmitz has two solid grounds for appealing that order to the U.S. Supreme Court.

The first is that the conservative justices who ruled against him, 4-2, were biased and should have recused themselves.

The second is that those justices misread the U.S. Supreme Court precedents on campaign finance law and the First Amendment.

On the first ground, the four conservative justices — Justice Patience Roggensack, Justice Annette Ziegler, Justice Michael Gableman, and Justice David Prosser — had an obvious conflict of interest. Three main groups that the special prosecutor was investigating – Wisconsin Manufacturers and Commerce, Wisconsin Club for Growth, and Citizens for a Strong America — spent a combined total of more than $8 million on expenditures to help elect those four justices.

Here is the breakdown:

Wisconsin Manufacturers & Commerce spent about $5.6 million on these four conservative justices:

  • $500,000 in support of Roggensack
  • $1,100,000 in support of Prosser
  • $1,760,000 in support of Gableman
  • $2,200,000 in support of Ziegler

Wisconsin Club for Growth spent about $1.75 million on the four conservative justices:

  • $350,000 in support of Roggensack
  • $400,000 in support of Ziegler
  • $500,000 in support of Gableman
  • $500,000 in support of Prosser

Citizens for a Strong America spent about $1 million in support of Prosser in his tightly contested reelection race against JoAnne Kloppenburg in 2011.

In the landmark Caperton v. Massey Coal case in 2009, the U.S. Supreme Court ruled that a judge needs to recuse himself or herself when a party to a case has given so much campaign support to that judge that there is a “serious risk of actual bias.” As the Brennan Center for Justice has noted, the U.S. Supreme Court cited several factors that demonstrate such a serious risk: the “relative size” of the financial support in comparison to the total amount contributed to the campaign; the “apparent effect” of this financial support on “the outcome of the election”; and the timing of the financial support relative to the election day and the likelihood that a case involving the donor would be soon before the court.

The relative size of the expenditures on behalf of all four justices and the apparent effect those expenditures had on the outcome of their elections provide a solid basis for ruling that all four justices should have recused themselves.

As regards Justice Gableman, the $1,760,000 that Wisconsin Manufacturers and Commerce spent on his behalf proved decisive in an election that he won by only 20,000 votes. He has reliably ruled in favor of Wisconsin Manufacturers and Commerce since getting on the state’s highest court.

As regards Justice Prosser, the $2,600,000 that all three groups combined spent on his behalf proved decisive in the 2011 election that he won by only 7,000 votes. His victory came at a time when the recall process was just getting under way (and it was the activities of these three groups during the recalls that were at issue in the John Doe investigation).

Special prosecutor Schmitz had filed a motion seeking the recusal of at least one of the justices. That motion was not granted. And therefore this is one clear path for an appeal to the U.S. Supreme Court.

The second grounds for appeal is equally strong. As the Brennan Center has noted, the Wisconsin State Supreme Court’s ruling is “at odds with nearly forty years of Supreme Court precedent.”

The Wisconsin State Supreme Court ruled that it was protecting “political speech, a vital First Amendment right,” when it said that it was OK for outside groups to coordinate with a candidate so long as those outside groups aren’t engaging in express advocacy.

But in the famous 1976 U.S. Supreme Court case, Buckley v. Valeo, the court ruled that expenditures by outside groups that are coordinated with candidates amount to campaign contributions. “The ultimate effect is the same as if the person had contributed the dollar amount to the candidate and the candidate had then used the contribution,” the court ruled. Such expenditures, it said, should be “treated as contributions rather than expenditures.”

In fact, it is only the lack of coordination that reduces the risk of corruption, the Court argued in Buckley. “The absence of prearrangement and coordination of an expenditure with the candidate or his agent . . . alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidates.”

By contrast, the Wisconsin State Supreme Court, by legalizing coordination, is inviting precisely the kind of “quid pro quo” that Buckley was aiming to prevent. Ironically, the Wisconsin statute it invalidated was treating coordinated expenditures as contributions, just as the U.S. Supreme Court had instructed in Buckley.

In its 2003 ruling in McConnell v. FEC, the U.S. Supreme Court reaffirmed the illegality of coordination, stating that “outside expenditures that are coordinated with a candidate — or “made after a wink or nod” — often will be ‘as useful to the candidate as cash.’ ”

Even in its infamous Citizens United decision of 2010, which allowed independent groups to spend unlimited amounts of money, the U.S Supreme Court stressed that such groups had to be independent; they couldn’t coordinate with their favored candidates. “By definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate.”

The Wisconsin State Supreme Court simply chose to ignore that, just as it ignored and overran the Buckley and McConnell rulings.

And as the Brennan Center has noted, the U.S. Supreme Court has never said that coordinated expenditures are OK so long as the so-called independent group is not engaging in “express advocacy.” The Wisconsin State Supreme Court made that up on its own.

The special prosecutor should appeal that to the U.S. Supreme Court.

From Buckley to Citizens United and beyond, the U.S. Supreme Court has advocated disclosure of contributions. The decision by the Wisconsin State Supreme Court undermines these precedents.

Here’s how: In Wisconsin, if you’re running for governor, your richest donor can give you only $10,000, which you have to disclose. But now you can ask your billionaire friend to give $100,000 or $1,000,000 to an outside group and you can tell that outside group how to spend it (as long as it doesn’t run an ad saying, “Vote for” or “Vote against”). And the kicker is that this outside group doesn’t have to disclose where it got the $100,000 or the $1,000,000. In this way, our democracy in Wisconsin will drown in a sea of dark money.

In Buckley, the U.S. Supreme Court said that disclosure requirements were necessary to “deter actual corruption and avoid the appearance of corruption by exposing large contributions and expenditures to the light of publicity.”

The Wisconsin State Supreme Court decision runs 180 degrees counter to that.

For these reasons, the special prosecutor must appeal the decision of the Wisconsin State Supreme Court in the John Doe case and give democracy a chance in Wisconsin.

Wisconsin justices reward their donors with a ruling that creates a lawless playing field for political campaigns

It came as no surprise when the Wisconsin Supreme Court decided to end a John Doe investigation into the illegal coordination of fundraising activities between Gov. Scott Walker’s 2012 re-election campaign and the independent “dark money” groups that support him. After all, the court’s conservative majority had collected $8 million in donations from the political groups being probed.

The decision overturned a state law banning the coordination of fundraising and campaign activities between political groups.

In the U.S. Supreme Court ruling Citizens United, political groups were empowered to raise limitless funds from anonymous sources. But campaigns are still subject to a law placing limits on how much an individual can give to them directly. In making the dividing line between campaigns and dark money groups porous, Wisconsin’s high court exponentially amplified the impact of Citizens United in the state.

Now, almost anything goes for political campaigns in Wisconsin. This is the culmination of years of Republicans notching away at laws designed to curb the influence of money in politics.

To be clear, the law was firmly on the side of the John Doe prosecutors, who contended that when Walker directed donors to contribute money to the Koch-brothers’-backed Wisconsin Club for Growth instead of directly to his campaign, they were illegally coordinating. But in a majority opinion that seems to have been written in the Twilight Zone, Gableman denied that the law banning advocacy groups from coordinating with campaigns could have existed, because it would have violated donors’ freedom of speech.

It’s unclear whether the ruling will have much impact. The law was already hazy.  Illegal coordination has been going on all along, and authorities have simply ignored it.

Sen. Patrick Leahy, D-Vermont, recently introduced a bill to more effectively ban coordination between super PACs and political candidates by strengthening the definition of “coordination.” We trust that Wisconsin Sen. Tammy Baldwin will support the bill, and we urge concerned citizens to barrage Sen. Ron Johnson with calls to do them same.

But Gableman’s opinion does bring campaign coordination out of the closet. Candidates in the state no longer have to fake playing by the rules, which will make them bolder and more audacious than ever in manipulating elections.

It’s worth noting that Gableman also ordered the destruction of all the records that prosecutors painstakingly gathered for the case at taxpayer expense. He not only had his benefactors’ backs, but Walker’s as well, shielding him from potentially damaging revelations.

A pattern is emerging among Republican corporatists like the court’s judicial shills. If they don’t like a law, a policy or an agency, they simply cut it out of the picture like a philandering ex-husband.

The ruling in this case mirrors recent efforts by Wisconsin Republicans to eliminate the pesky Government Accountability Board, the Legislative Audit Bureau and even the state’s open records law. Those proposals were dropped after stirring unforeseen public outrage, but they’re still in the works, waiting for a more opportune moment.

Gableman topped off his ruling with a dollop of shameless ass-kissing. He praised the defendants in the case for their bravery in filing a self-serving lawsuit to further their influence over public policy. He contorted the greediest and shadiest of political players into champions of free speech.

Is it a coincidence that two of those defendants spent a total of $2.25 million helping to elect Gableman, who was deemed unqualified by several legal groups and ran a racist campaign ad so misleading that it spurred a lawsuit filed by the Wisconsin Judicial Commission and Citizen Action of Wisconsin?

Absolute power corrupts absolutely, and that’s what we have in Wisconsin. Until the iron-clad rule of corporatist Republicans is broken, we expect more chipping away of campaign rules and sunshine laws until there’s nothing left — or until people start paying attention and demand reform.

Justices who dismissed John Doe investigation received over $8 million from the groups being probed

The four justices on the Wisconsin Supreme Court who just dismissed the John Doe investigation concerning alleged coordination between Scott Walker and so-called outside groups were aided enormously by some of the very groups that were party to the John Doe case.

Wisconsin Manufacturers & Commerce, Wisconsin Club for Growth, and Citizens for a Strong America — all of which are reportedly embroiled in the John Doe — together spent more than $8 million in support of Justice Patience Roggensack, Justice Annette Ziegler, Justice Michael Gableman, and Justice David Prosser.

“It boggles the mind that these justices are essentially saying that they can somehow be impartial when these parties to the case were spending huge wads of cash to get them elected,” says Matt Rothschild, executive director of the Wisconsin Democracy Campaign. “This doesn’t pass the smell test. The initials WMC are practically embroidered on their seats.”

Wisconsin Manufacturers & Commerce spent about $5.6 million on these four conservative justices:

$500,000 in support of Roggensack

$1,100,000 in support of Prosser

$1,760,000 in support of Gableman

$2,200,000 in support of Ziegler.

Wisconsin Club for Growth spent about $1.75 million on the four conservative justices:

$350,000 in support of Roggensack

$400,000 in support of Ziegler

$500,000 in support of Gableman

and $500,000 in support of Prosser.

Citizens for a Strong America spent about $1 million in support of Prosser in his tightly contested reelection race against JoAnne Kloppenburg in 2011.

Had any of those justices lost, the balance of the court would have shifted from conservative to liberal. In the two closest elections, Prosser won by about 7,000 votes and Gableman by about 20,000.

One of the John Doe prosecutors, Francis Schmitz, who voted for Scott Walker, had asked at least one of these justices to recuse themselves—to not hear the case because of their conflict of interest.

In a U.S. Supreme court ruling in 2009 in Caperton v. Massey, the highest court in the land said that judges must recuse themselves from cases involving a party that had a “significant and disproportionate influence” on the judge getting elected.

None of the four justices that dismissed the John Doe did so.

Wisconsin Supreme Court Justice Bradley braces for infusion of right-wing money against her reelection campaign

The Wisconsin Supreme Court currently has a 4–3 conservative tilt, but if right-wing Republican groups succeed in ousting two-term incumbent justice Ann Walsh Bradley from the bench on April 7, the state’s highest court will move farther rightward, with a solid majority of 5–2.

To ensure this happens, major corporate money, including third-party donations from such lobbying groups as Wisconsin Manufacturers and Commerce and the Koch brothers-backed Wisconsin Club for Growth, is expected to flow into the campaign of Bradley’s opponent. Together the two groups spent an estimated $8.3 million for “issue ads” helping to elect conservative justices Annette Ziegler, Michael Gableman, David Prosser and Patience Roggensack, according to wiconsinwatch.org. That amount dwarfs the $3.2 million spent by those same judges on their own campaigns.

Judicial positions are nominally non-partisan, but any illusion that’s the case evaporated long ago. Bradley’s opponent — Rock County Circuit Judge James Daley — denies he has any ideological bias, but he’s sent out tweets using the hashtag #tcot, which stands for “top conservatives on Twitter.” He admits that the Republican Party helped circulate his nominating papers, and he’s appeared at GOP gatherings throughout the state promoting his conservative agenda and asking for help.

Daley told the Milwaukee Journal Sentinel that he’s attended those events simply to speak with voters who are most likely to share his philosophy. He called Bradley an “activist judge,” a criticism that Republicans in the state frequently aim at judges who’ve issued opinions against Gov. Scott Walker’s policy agenda, including his union-busting Act 10 and his law requiring voters to show photo ID at the polls.

In a conversation with WiG, Bradley blasted Daley for co-opting the Republican agenda and for having Republican operatives on his campaign staff. She said that her campaign did not accept help from the Democratic Party to circulate her nominating papers and that her campaign would not accept contributions from political parties or attorneys and litigants with pending cases.

In fact, Bradley said that maintaining judicial independence is the centerpiece of her retention bid. It’s not only unethical for partisanship and campaign donations to influence application of the law, she said, but it also erodes the public’s perception of a fair justice system.

Knowing that conservatives would probably spend massive amounts of money on advertising and TV commercials that misrepresent her record, Bradley thought long and hard about seeking a third term on the bench.

“I know what is coming in the last few days or weeks of the campaign,” she said.

But it’s that knowledge that ultimately determined her decision to run. “I think it’s time to stop this influx of partisanship in the judiciary,” she said. “My vision of a judiciary is different form what we’ve seen in the recent past five years.”

According to Bradley, Wisconsin ranks No. 2 in the nation for special interest advertising in judicial races — behind only Pennsylvania.

“It’s not this way in other states, and it doesn’t have to be this way in Wisconsin,” she said.

The Wisconsin Center for Investigative Journalism and The Associated Press contributed to this article.


Why Wisconsin’s registry law must be preserved

It may not be a high profile marriage case, but to those 2,000-plus same-sex couples who’ve registered in Wisconsin, Appling v. Walker is a case that’s poised to have a tremendous impact on their lives.

Two of those couples joined us at the Wisconsin State Supreme Court for oral arguments in Appling — Kathy Flores and Ann Kendzierski of Appleton and Janice Czyscon and Crystal Hyslop of Madison. They are two of the five couples who joined Fair Wisconsin in defending the domestic partnership registry against Julaine Appling and Wisconsin Family Action’s attempt to have it declared unconstitutional. 

When our opposition filed its lawsuit in 2009, we knew that highlighting the stories of individuals who were impacted by the availability — or lack of — legal protections would be critical in defending the registry. In joining the case, the defending couples have made public some of their most private moments — times when they have been subjected to homophobia and discrimination.

Flores has several serious health issues. In 2009, she was in an Appleton hospital and wanted Kendzierski by her side during a procedure. The nurse told Flores her “friend” would be more comfortable in the waiting room. Flores explained their relationship but the nurse refused to let Kendzierski join her.

Flores successfully advocated for herself, however. She ultimately persuaded the doctor to allow Kendzierski’s presence during the procedure, but the fact that she had to deal with discrimination at such a traumatic time illustrates why the registry is so important.

Czyscon and Hyslop have been together for 33 years. As they plan for their future, the protections the registry provides for hospital visitation, family medical leave and inheritance are critical for them to care for each other. I remember their excitement when we gathered outside the Dane County Clerk’s office at 5 a.m. on Aug. 3, 2009, so they could become the first couple registered in the county. That was when I fully realized the enormity of what domestic partnerships meant for Wisconsin.

It’s true that today, seven years after Wisconsin voters banned marriage equality and civil unions, the conversation about equality is vastly different. Even conservative Justice Michael Gableman made that point during oral arguments. It’s surprising that we are defending such a limited set of legal protections while other states are fighting for full marriage equality.

But before we can move forward, we have to protect our previous victories. We are extremely fortunate to have Lambda Legal representing Fair Wisconsin and our five couples who volunteered to be defendants in this case. Christopher Clark, Lambda Legal’s senior staff attorney, made an impassioned presentation to the Supreme Court, laying out the clear, logical reasons why the registry does not violate our constitutional amendment while also sharing the critical need for same-sex couples to have basic legal protections.

There was a sharp contrast between Clark’s arguments and our opposition’s attempts to strip the most basic protections from same-sex couples.

Justice David Prosser summed up the religious rights’ legal efforts best when he said they were “just rolling the dice.”

Wisconsin has fallen far behind our neighbors and many parts of the country but a victory in the Supreme Court will prevent us from falling farther in terms of progress and equality.

Katie Belanger is the president of Fair Wisconsin.


News analysis | State’s high court considers overturning domestic partner registry law

While a band of states sprinted forward on marriage equality in recent weeks, Wisconsin activists were battling in the state’s highest court just to keep a domestic partner registry law on the books.

The registry accords limited but critical protections to same-sex couples and their families, according to its supporters.

The state’s leading anti-gay Christian group, Wisconsin Family Action, contends that by providing same-sex couples with any of the rights associated with marriage, the registry law violates the state’s Constitution.

An Oct. 23 hearing before the state’s Supreme Court was the third attempt by WFA president Julaine Appling to overturn the registry law. Two lower-courts dismissed her suit, which an appeals court called “nonsense.”

Nonetheless, Appling’s most recent day in court was her best chance of winning. The Wisconsin Supreme Court is heavily politicized and dominated 4–3 by justices aligned with the conservative political agenda. Justice David Prosser, in fact, promised during his 2011 retention campaign to support the policies enacted by Gov. Scott Walker.

Other conservatives on the bench have received formidable campaign funding from special interests allied politically with WFA.

As a formality, Walker is named as one of the defendants in Appling’s suit. But he and Attorney General J.B. Van Hollen have both declared the registry law unconstitutional and refused to defend it in court, a responsibility that was assumed by the statewide equality group Fair Wisconsin.

‘Far Cry’ from marriage

Appling and WFA were behind the 2006 constitutional amendment that banned same-sex marriage along with “any legal status identical or substantially similar to that of marriage.” Appling insists that the registry law, also known as Chapter 770, is unconstitutional because it mimics marriage. 

The Assembly narrowly approved Chapter 770 in 2009 to provide same-sex couples with such basic rights as the ability to inherit a partner’s estate in the absence of a will, access to family medical leave to care for a sick partner, and hospital visitation rights. Then-Gov. Jim Doyle, D, signed the bill into law.w

Defending the registry law on behalf of Fair Wisconsin and five registered same-sex couples, Lambda Legal attorney Christopher Clark told the court that the limited set of rights bestowed by the registry is “a far cry” from marriage. Furthermore, unlike marriage and civil unions, he said, the registry law requires no commitment of exclusivity, no formal legal mechanism for dissolving the arrangement and no requirement of mutual obligation of support — key legal components of civil marriage.

Registered same-sex couples from Wisconsin are not recognized as married in other states where same-sex marriage is legal, Clark added. The 2009 law was crafted with the help of legal experts specifically so that it would not violate the intent of the 2006 constitutional amendment, he said.

Justice Michael Gableman, a leading advocate on the bench for Walker’s political agenda, grilled Clark about which rights — and how many rights — would be required to create a domestic arrangement substantially similar to marriage. Other justices echoed that line of questioning.

But Austin Nimocks, an attorney with the Scottsdale, Ariz.-based anti-gay Alliance Defense Fund, argued on behalf of WFA that the plaintiffs’ objection was not based on the rights themselves or even the number of rights, but rather on the “formation requirements” of the law. He said those requirements closely resemble those of marriage. For example, he said the minimum age requirement and the ban prohibiting closely related people from registering as partners both reflect traditional marriage requirements. 

“There is no other legal status under Wisconsin law that is so specific,” Nimocks argued. “I believe (the registry contains) the essence of what marriage is . . . the features are very, very similar.”

Clark countered that in campaigning for the 2006 amendment, its backers expressly told voters that it would not prevent the enactment of other legal measures protecting same-sex couples. Amendment proponents promised the law would ban only marriage and “Vermont-style marriage,” a reference to civil unions in Vermont at the time, which provided partners with all of the privileges and responsibilities of marriage. Vermont has since enacted full marriage rights for same-sex couples. 

Gableman agreed: “Sponsors of the amendment told voters and legislators that the law would allow them to create some sort of (measure supporting same-sex couples) as long as it wasn’t a ‘Vermont-style marriage,’” he said.

Clark also told the court that overturning the registry law would cause “very real legal ramifications for (registered) couples and their families.” Employers, including a growing number of municipalities in the state, use the registry as the basis for determining whether same-sex couples are eligible for health care and other employment benefits extended to partners of workers, he explained.

Nimocks suggested that the plaintiff was not asking the court to retroactively undo registrations that have already been occurred, but rather to prevent couples from registering in the future.

Rolling the dice

Clark noted that the legal arguments employed by WFA’s attorneys to overturn the law have changed over the course of litigation. But Justice Patience Roggensack, who sides with Republicans on the bench, responded that it’s not unusual for lawyers to change their arguments as cases progress. What was unusual about this case, she said, was that its opponents insisted on invalidating the entire law as opposed to challenging a specific aspect of the law. 

“It’s something very different from what we usually see,” she said. 

Prosser noted that Nimocks was “rolling the dice here” by hinging the case on the “constituent elements” of the registry law — that is, for focusing his argument on the requirements for registering as domestic partners rather than the rights accorded under the law. He said Nimocks’ strategy, if he loses, would give the Legislature an opening to go back and add additional benefits to the law — “bing, bing, bing,” as he put it.

Following the nearly hourlong hearing, reporters and television cameras crowded around the pro-equality contingent outside the courtroom. Kathy Flores and Ann Kendzierski, a same-sex couple from Appleton and defendants in the case, told reporters that their inclusion on the registry grants them crucial rights, such as ensuring they can see each other in the hospital. With tears in her eyes, Flores described how hospital staff refused to let Kendzierski see her when she was diagnosed with cancer.

“(The registry) is . . . how we take care of each other,” Flores told reporters.

Elephants in the room

Leaders on both sides of the case described themselves as “cautiously optimistic” after the hearing, although Appling indicated that she believed the judges’ questions did not favor her position.

“I have seen many times when justices ask questions and then turn around and vote the other way,” she said hopefully.

Appling, suffering from a bad case of laryngitis, appeared weary.

“I’ve lived for this day for four years,” she said. “I’m glad it’s over. We rest in the hands of the justices.”

Appling’s high-profile case in the name of “protecting marriage” has brought ridicule to her personally because she’s never been married and has lived for many years with another never-married woman in a home the two own together in Watertown.

Appling was accompanied in court by a contingent of people that included her longtime “roommate” Diane Westphal and James Maillette, WFA’s executive vice president. In an introduction posted on YouTube in January 2013, Maillette made a point of presenting himself as married with three sons.

Although fundamentalist Christian beliefs are at the heart of WFA’s mission, as well as its motive in opposing the registry law, the words “bible” and “God” were not mentioned during the hearing, nor during Appling’s conversation with WiG that followed the hearing. Neither were the words “lesbian,” “gay” or “homosexual.”

Clark said the changes in language and tone that have evolved since same-sex marriage was a new concept reflect how far society has moved forward on the issue. The most recent Marquette University Law School poll showed that 53 percent of Wisconsinites now favor same-se marriage.

Still, one thing that hasn’t changed is the insistence of anti-gay activists that same-sex marriage will destroy traditional marriage. That argument was another  elephant that went unspoken in the courtroom, and Appling only brought it forward in speaking with WIG following the hearing.

Perhaps that’s partly because the argument has been discredited by facts. The northeastern United States, which has the highest concentration of states that allow same-sex marriage, also has the lowest divorce rates. Massachusetts, which in 2005 became the first state to legalize same-sex marriage, has the lowest divorce rate of all the states.

It’s unclear how the carefully choreographed dance around the real issues will affect the justices’ decision. Both sides asked the court to consider only the technicalities of a case that two lower courts found had no legal merit. And, as Clark pointed out in presenting his case, the constitution only permits a finding in favor of the plaintiffs if there is “no reasonable doubt” that the registry law does indeed create a legal status identical to marriage.

That’s probably why the justices’ questions, especially those of Gableman, seemed to favor the registry’s supporters, despite the court’s conservative bent. 

“This is all a veiled effort to undermine the ability of gay and lesbian couples to be together and take care of each other,” said Katie Belanger, president of Fair Wisconsin, following the hearing. “The lower courts have been very clear about the legal claims in this case.”

Clark expressed confidence that “the court will honor the intent of the legislation in 2009” and “do the right thing.”

But Belanger agreed with Appling about one aspect of the case: “It’s been a long road,” she said.

The high court’s justices are expected to issue their final say on Appling v. Scott Walker by June 2014. 

To read Belanger’s article “Why the registry law must be preserved,” click here.

State’s High Court turns down partner registry appeal

The Wisconsin Supreme Court has declined to take up a case challenging the constitutionality of the state’s domestic partnership registry law until it’s gone through the normal appeals process.

The case was initiated when Julaine Appling, head of Wisconsin Family Action, joined with other anti-gay activists to file a suit claiming the registry violated a  2006 constitutional amendment banning same-sex marriage and any similar legal status for gay and lesbian couples.

Former Gov. Jim Doyle, D, enacted the law, which gives registered same-sex couples 41 of the more than 200 benefits the state offers married couples. A Dane County judge ruled last year that the registry does not violate the constitutional amendment because the relatively few rights it affords to couples do not mirror marriage.

Appling appealed that ruling, but the 4th District Court of Appeals sent the case directly to the Supreme Court in July.

“We perceive nothing particularly complicated in the parties’ dispute over the meaning of the marriage amendment and its application to Wisconsin’s domestic partnership law,” the appeals court wrote. “We therefore perceive no reason why the Supreme Court might benefit from the refinement of issues that sometimes occurs when a dispute first works its way through briefing and decision in the court of appeals. Thus, in light of the statewide importance of the issue and the desirability of a prompt and final resolution, we certify this appeal to the Wisconsin Supreme Court.” 

The state’s sharply divided high court, which has a right-wing majority, sent the case back to the appeals court, however, on a vote of 5-2. The two dissenting judges were liberal Chief Justice Shirley Abrahamson and Justice Ann Walsh Bradley, who wanted to take up the case.

Madison insiders say two other justices on the court, conservatives David Prosser and Michael Gableman, are widely perceived to be gay, which could add another twist to the case when it does reach their courtroom. No matter how the District 4 Court of Appeals eventually rules, the losing side is certain to appeal the decision to the Supreme Court.

The scenario surrounding the case is already complicated by Appling’s personal life. Never married, she has lived for many years with another never-married woman in a Watertown home that the women own jointly.

In a May interview with The Cap Times, Appling acknowledged feeling same-sex attraction, calling it universal.

“There’s not a person alive who hasn’t said, ‘Well, I wonder’ (about my sexual orientation),” Appling told Cap Times reporter Jack Craver.

Repeated studies have found a strong link between homophobia and repressed homosexual desire.