That’s not a good thing

Update: UNPRECEDENTED indeed. From the Court of Appeals order today: “Based on our review of the cases cited in the petitioner’s brief and the arguments and authorities presented to the trial court, that does not appear to be an adequate basis for prior restraint in the context of a defamation claim. In short, we are aware of no caselaw which permits prior restraint of speech before an adjudication on the merits of the defamatory nature of the statement at issue.”

“Unprecedented” gushed the Democratic Party of Wisconsin, describing Jackson County Judge Thomas Lister’s temporary restraining order against the Coalition for America’s Families (CFAF). “Unprecedented” they called it on Saturday (twice!) and on Sunday. For the record, it is NOT a good thing in the law when you call a decision unprecedented.

CFAF should win ASAP on its appeal to the Wisconsin Court of Appeals (District IV). The case is riddled with problems. First, the plaintiff, Radcliffe for Assembly, requested the temporary restraining order based on Wis. Stat. 12.05, a criminal statute banning false statements intended to impact elections (and thus, NOT a statute justifying civil remedies. See Tatur v. Solsrud, 174 Wis.2d 735 (1993)). Judge Lister, in his unprecedented ruling, granted it because “it appears from a plain reading of the pleadings that the Plaintiff is entitled to relief from false representations that are intended to affect voting at an election as per Wisconsin Statute 12.05.” Then, during yesterday’s telephone conference, the Judge all of a sudden changed his mind, set aside 12.05, and instead claimed the order was based on a defamation claim, even though the plaintiff never made a defamation claim and the complaint was not in the form necessary for a defamation claim. So that’s problem one – Judge Lister just changed his statement all of a sudden on the basis for the order.

Problem two is the First Amendment (and Wisconsin’s state constitutional protection). The Judge’s restraining order is a restraint on speech regarding a political candidate. The attorneys representing CFAF have filed an extensive brief making their argument, and I expect them to win on it. This is political speech about a candidate for public office – the rules for defamation lawsuits are much different that they are for an average private citizen to bring such a claim.

Problem three is the flexibility given for making claims about candidates for office. CFAF’s ad claims that Mr. Radcliffe supports Healthy Wisconsin, the Democrats’ plan for universal health care through huge tax increases. They make this claim based on an appearance of Mr. Radcliffe on Wisconsin Public Radio, where he said: “I am in support to access to affordable health care for everybody and Healthy Wisconsin is a start. We need to continue to discuss the best way to get that affordable health care to somebody and what Healthy Wisconsin has done is put that on the forefront and for that I commend it and now we need to continue to work on that document to get it through.” (italics mine). Now Mr. Radcliffe claims that he does not support Healthy Wisconsin and CFAF’s statement that he supports it is false and defamatory. CFAF replies by pointing to this statement, which Radcliffe claims is taken out of context and moreover is only one among many statements he has made regarding Healthy Wisconsin, and at other public events he has said he opposes it. I read the Wisconsin Supreme Court’s decision in State ex rel. Skibinski v. Tadych, 31 Wis. 2d 189 (Wis. 1966) (the discussion of statements regarding the open-housing law), regarding 12.05, to grant a fair amount of leeway for political actors to make claims about candidates for office based on the public record. In other words, I don’t think that CFAF is making a deliberately false statement that Mr. Radcliffe supports Healthy Wisconsin based on his WPR quote.

Finally, and minor in context perhaps, there are the irregularities regarding the judge’s communication with the Government Accountability Board and the Federal Communications Commission, the miserably lacking complaint, and questions about service of process and other due process concerns.

Admittedly, the Democratic Party of Wisconsin wants to win Assembly seats, period. And if they look foolish after tomorrow’s election by the Wisconsin Supreme Court, they’re thinking – so be it. But this case will probably reach the Supreme Court, and the Court will almost certainly rule against the plaintiff on several issues. When that happens, DPW will look very silly after investing such great effort in hailing Judge Lister’s original decision as so great and wonderful.

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