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Order sets off judicial fireworks

Hon. Prosser

The long-running, and long-avoided, dispute between unsuccessful candidate for governor, Mark Green, and the State Elections Board was dismissed on April 25, pursuant to the parties’ settlement of the case on March 16, and their joint motion to dismiss.

Nevertheless, the controversy ended with a bang rather than a whimper.

The court’s order consists of but 38 words:

“The parties have agreed that this case may be dismissed, with prejudice, without costs, and without further notice to any party.

“IT IS ORDERED that the original action is dismissed, with prejudice and without costs to any party.”

However, both Justices N. Patrick Crooks and David T. Prosser wrote lone concurrences.

Prosser

Prosser wrote, “In view of the settlement, I reluctantly concur in the Order to dismiss the action. Nonetheless, because this case always warranted the court’s urgent attention, I believe additional comment is necessary.”

Prosser began with an exposition of the Wisconsin Supreme Court’s decision in The Attorney General ex rel. Bashford v. Barstow, 4 Wis. 567 (1856), which involved a disputed election for governor, and ended with the court effectively removing a sitting governor from office, because of irregularites and fraudulent returns in the election.

Hon. Crooks

Comparing the court’s handling of that case to the one in the case at bar, Prosser opined, “Bashford v. Barstow was decided more than a century-and-a-half ago. We live now in different times.”

Prosser noted that, from the outset, Green contended that he had complied in every respect with existing state and federal law, something to which the Election Board now stipulates.

Prosser also speculated, “When Justice Department attorneys were called upon to defend the Elections Board’s rules and ‘order,’ they were not content with trying to defend retroactive rulemaking. They publicly and repeatedly accused Green of violating federal law, a position that directly contradicted the Elections Board’s formal interpretation of federal law. This astounding and disturbing position may be the reason why former Attorney General Peggy Lautenschlager’s name is conspicuously missing from all the briefs Department attorneys filed in this case.”

After a lengthy exposition of the case’s procedural history, which included three orders from the court prior to the election that deferred decision on the merits, Prosser concluded, “If there is ever a sequel to [Justice Winslow’s] The Story of a Great Court, this case will not be included. But with many more cases like this one, there is not likely to be a sequel.”

Crooks

Justice Crooks also wrote a concurrence to respond to the concurrence of Prosser.

Crooks wrote, “Several years ago, Grant County Circuit Court Judge Richard W. Orton, a distinguished trial judge, ordered summary judgment in a case. In doing so, he characterized the plaintiffs’ case as “hogwash, pure hogwash.” That phrase aptly fits those portions of the concurrence of Justice Prosser where he denigrates the actions of members of this court.”

Stating that the court spent many hours on the petitions, Crooks wrote, “Much is made in the concurrence of Justice Prosser about how this court was once a ‘great court,’ and how we no longer fit that description. In order to be a ‘great court,’ I believe that the members of such a court must be persons who care deeply about truth, justice, and fairness. I have great respect for my colleagues on the Wisconsin Supreme Court, but it is for others, not for us, to judge whether we continue to be a ‘great court.’ What I observed in the handling of this case by my colleagues convinced me that each of them cared deeply about truth, justice, and fairness for the parties. To denigrate, now, their actions is wrong and I must, therefore, respond to such unfair and inaccurate characterizations of the court and its actions in this case.”

David Ziemer can be reached by email.

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