James Donohoo

Sunday, June 29, 2008

Exhibts Links

Garden Party ad
Louis Butler response to Fair Wisconsin Questions
PAC Endorsement
Fair Wisconsin Interview
Fair Wisconsin Endorsement
Butler Journal Sentinel Article
Opinion 98-3

Friday, June 27, 2008

Petition for Disqualification fo Justice Louis B. Butler, Jr and for Rehearing

Memorandum in Support of Petition for Disqualification and Rehearing

Justice Butler Accepted Campaign Contributions From Litigants In Pending Case After Publicly Proclaiming He Would Not Do So, And Failed To Disclose Those Contributions To The Petitioner James Donohoo.

The Petitioner has discovered evidence that Justice Butler was disqualified by law from participating in Petitioner's case because of his financial and personal interest in the outcome of the case, and his violation of the Supreme Court Rules (SCR). Justice Butler was appointed to the Supreme Court bench by Governor James Doyle in August of 2004, and was involved in November of 2007 in an election campaign against Judge Michael Gableman. The Milwaukee Journal Sentinel reported on November 28, 2007 that Justice Butler had told the Journal Sentinel that he had adopted a new policy on disclosing campaign contributions. Justice Butler said he would refuse donations from parties that had cases before the Court, but that he would accept donations from lawyers representing those parties, but he would disclose them to the litigants(Exhibit 1).
The Journal Sentinel also reported that Justice Butler did not immediately disclose that an attorney appearing before the Supreme Court on a tax case had not only contributed $500 to his election campaign, but additionally had sat on his campaign finance committee. The Journal Sentinel reported that Justice Butler eventually disclosed those details to the parties in the tax case just hours after the Journal Sentinel inquired about it. A campaign spokesman for Justice Butler additionally said Justice Butler's disclosure system was working (Exhibit 1).
The Respondents, Action Wisconsin Inc. and Christopher Ott, are represented by the law firm of Cullen, Weston, Pines & Bach. Attorneys Lester A. Pines and Tamara B. Packard from the law firm specifically appeared on the Respondents' behalf. On June 29, 2007, Attorney Pines filed on behalf of Action Wisconsin Inc. and Christopher Ott, its executive director, a petition for review of the Court of Appeals' decision reversing the award of the attorney's fees and costs against the Petitioner. On July 23, 2007, Attorney Pines contributed $300 to Justice Butler's election campaign. On September 11, 2007, the Supreme Court accepted review of the Court of Appeals' decision in the Petitioner's action.
On December 3, 2007, Justice Butler sent a letter to the Petitioner disclosing the $300 contribution from Attorney Pines, and informing the Petitioner that said contribution would not affect Justice Butler's impartiality in his participation in the Petitioner's case. Justice Butler did not disclose any other contributions.
On March 28, 2008, Wisconsin Family Action, Inc. filed a formal request for investigation with the Wisconsin Judicial Commission, charging that Justice Butler had misled citizens and impaired his ability to render fair and impartial decisions in cases affecting the so-called "gay rights and marriage" (Exhibit 2). The Supreme Court issued its decision on the Petitioner's case on June 5, 2008. Approximately two weeks before the decision was issued, Petitioner discovered, for the first time, the judicial complaint of Wisconsin Family Action against Justice Butler. Petitioner discovered this complaint by searching the Internet under Petitioner's name. Prior to that time, Petitioner had no knowledge of any of the relevant facts contained in the judicial complaint, except that Attorney Lester Pines contributed $300 to Justice Butler's reelection campaign on July 23, 2007.
Since requesting a disqualification of a judge at law is a serious matter, the Petitioner needed some time to research the matter and evaluate all of the information. Therefore the Petitioner was not able to make an immediate decision on requesting disqualification at law. The Petitioner also discovered during this time the additional facts cited in this memorandum. Before the Petitioner could make a final decision on filing a petition for disqualification at law, the Supreme Court issued its decision on June 5, 2008.
That complaint documented that on June 30, 2007, one day after Action Wisconsin had filed with the Supreme Court its petition to review the Court of Appeals' decision reversing the awarding of approximately $90,000 in costs and fees against the Petitioner, that Peter Bock, a board member of Fair Wisconsin had contributed $125 to Justice Butler's election campaign. Furthermore Ruth Irvings, another board member of Fair Wisconsin, had contributed $100 to Justice Butler's election campaign on December 7, 2007. Also on January 28, 2008, Ruth Irvings contributed an additional $1000 to Justice Butler's election campaign, said contribution occurring 13 days after the oral arguments were held on the Petitioner's case on January 15, 2008.
Fair Wisconsin and Action Wisconsin are the same entity. In February of 2006, Action Wisconsin formed Fair Wisconsin as its PAC opposing Wisconsin's marriage protection amendment in the 2006 election. In November of 2006, Fair Wisconsin transferred $27,000 and all of its remaining debts to Action Wisconsin. In December of 2006, Action Wisconsin changed its name to Fair Wisconsin (Exhibit 2). Therefore when Peter Bock and Ruth Irvings made their contributions to Justice Butler's election campaign, they were for all purposes board members of the Respondent, Action Wisconsin, Inc.

Despite The Fact That Justice Butler Cast The Deciding Vote Against The Petitioner James Donohoo, A Case Where Petitioner's Professional Reputation And Financial Livelihood Were At Stake, Justice Butler Failed To Disclose To The Petitioner That He had Accepted Campaign Contributions From Petitioner's Opponent In The Lawsuit.

The compromise of Justice Butler's impartiality by accepting serial donations from a litigant in a case pending before him as a Supreme Court justice, in violation of his November 2007 proclamation not to do so, was further compounded by his failure to disclose to the Petitioner these contributions. The Petitioner's professional reputation and financial livelihood were on the line regarding the Supreme Court's ruling, yet despite this, Justice Butler accepted the contributions from Action Wisconsin and failed to disclose them to the Petitioner. The concern of the Petitioner is with the apparent inconsistency of Justice Butler in his believing it necessary to report to the Petitioner the $300 donation from an attorney for the litigant, but not contributions in excess of $1,200 from the litigant. It would appear to the Petitioner that Justice Butler deliberately sought to create the impression that he was transparent and completely forthcoming in his integrity, and that his impartiality had been proven by divulging the initial $300 contribution from Attorney Pines.
By Justice Butler accepting serial contributions from a litigant after he had vowed to not do so, and by his failure to report the acceptance of these contributions from the litigant to the Petitioner, Justice Butler deprived the Petitioner of the opportunity to object to Justice Butler's participation in the Petitioner's case based on these contributions.
Even after Justice Butler was notified of the judicial complaint which was filed against him on March 28, 2008, (related partially to the Petitioner's case) and the donations from Action Wisconsin (Fair Wisconsin) board members, he still failed to disclose the contributions to the Petitioner.

Justice Butler Appeared At An Intimate Garden Party Fund Raiser For The Homosexual PAC And Avowed His Support For LGBT Equality, And Undoubtedly Helped Raised Funds For The PAC In Violation Of SCR 60.05(1) and SCR 60.05(3)(c)2.d., And Obtained The PAC Endorsement.

But there is more. Another disturbing piece of evidence has come to Petitioner's attention that constitutes not just another illustration of Justice Butler's financial interest in Petitioner's case, but also his personal interest in Petitioner's case. The Center Advocates Political Action Committee (hereinafter PAC) as of August 2007, was the only PAC group in Wisconsin supporting "LGBT (lesbian, gay, bi-sexual, and transgender) equality" and the passage of legislation at the local, state, and federal level benefitting LGBT people and their families. The PAC's sole purpose is to advance the cause of LGBT equality, including same-sex marriage. Similarly at the same time, Action Wisconsin (Fair Wisconsin) was the only Wisconsin non-PAC group committed to promoting LGBT equality and the passage of legislation advancing that cause. The PAC and Action Wisconsin (Fair Wisconsin) work together for the same goals.
The PAC on January 22, 2008, seven days after oral argument on the Petitioner's case, endorsed Justice Butler, among other candidates, for the Wisconsin Supreme Court. Their endorsement noted "these candidates have a long history of advancing LGBT equality through legislation or support of current legislation that protects LGBT people. Each one has either voted in their position against the amendment to ban same-gender marriage or have spoken out on behalf of fair and equal treatment of LGBT families in Wisconsin" (Exhibit 3).
An additional PAC Internet posting in March of 2008 endorsing Justice Butler indicated: "PAC endorsed candidate support LGBT equality and the passage of legislation at the local, state, and federal level to protect LGBT people and their families. Each have committed to work towards this goal of equality for the LGBT community. Wisconsin Court Races. Justice Louis Butler - Wisconsin Supreme Court. Justice Butler is the only WI Supreme Court judge from Milwaukee and (sic) first African-American to serve on the highest Wisconsin court. This past summer, Justice Butler attended and spoke at the Center Advocates PAC Garden Party for Equality. Justice Butler spoke in support of LGBT equality and protection for LGBT people and their families." (Exhibit 4)
The PAC "Garden Party" was held on August 26, 2007. The "Garden Party" was obviously a hardcore intimate fund raising event. The PAC's website reporting on the event had color photos of supporters of the PAC, and additionally had a color photo of Justice Butler, in casual attire, addressing the attendees of the fund raiser. See http://www.hrl-pac.org/id53.html (Exhibit 5).
SCR 60.05(3)(c) 2.d. forbids a Supreme Court justice, in any capacity, from using or permitting the use of the prestige of the judicial office for fund raising. Petitioner has attached hereto a copy of Opinion 98-3 issued on February 19, 1998 by the judicial conduct advisory committee regarding the interpretation of this Rule (Exhibit 6). The Opinion discussed SCR 60.05(1) in relation to justices' involvement in a fund raising event. SCR 60.05(1) states in part that a judge shall conduct all of the judge's extra judicial activities so that they do none of the following: (a) cast reasonable doubt in the judge's capacity to act impartially as a judge.
The Opinion further discussed problems, namely an impression being given that there was a special or "cozy" relationship between the judge and other persons at a fund raiser. Regarding Justice Butler's appearance at the fund raising "Garden Party" and speaking in favor of LGBT equality, the impression would go far beyond the appearance of a cozy relationship. Can there be any legitimate debate concerning whether Justice Butler's appearance at the fund raising event avowing his support for LGBT equality drummed up additional funds from the partisan crowd. Additional funds were probably drummed up by the subsequent website posting of the photo of Justice Butler at the fund raiser, and his identification as a Wisconsin Supreme Court justice, and also the PAC endorsement website posting that touted his appearance at the fund raiser and his speech. As the opinion indicates if it is unethical for a judge to act in a comedy skit for non profit fund raiser, what is it for a sitting justice to appear as an attraction at an advocacy group's fund raiser. Justice Butler knowingly used the prestige of his office to assist the PAC in fund raising. By appearing at the fund raiser and by delivering his partisan speech, Justice Butler joined himself at the hip with the PAC, and consequently also to Action Wisconsin.

Justice Butler Interviewed By Jim Schneider Regarding Appearance At Garden Party And Delivering Partisan Speech Avowing Support For LGBT Equality.

On March 24, 2008, Justice Butler was interviewed by Jim Schneider, a radio host on WVCY America, a local radio station based in Milwaukee. The interview is available at http.//vcyamerica.org/index.php?option=com_content&task=view&id=125&Itemid=132. Mr. Schneider noted that the PAC fund raising event ("Garden Party") had raised $21,000 for the PAC and LGBT causes. Justice Butler never denied that he knew that the "Garden Party" was a fund raising event. Also Schneider referenced the PAC endorsement of Justice Butler, and confronted Justice Butler with the language of the website posting that Justice Butler had attended the PAC's "Garden Party" and spoke in support of LGBT equality. Justice Butler hesitated in his response, and indicated that he spoke at the event about his candidacy and that he didn't get involved in individual causes, but he never specifically denied that he spoke at this fund raising event in favor of LGBT equality. Finally Justice Butler told Schneider that he was not even aware of the endorsement until he was informed by Schneider in the interview, even though the endorsement had been issued on January 22, 2008. Subsequently Justice Butler voted to reverse the Court of Appeals' decision in the Petitioner's case, casting the deciding vote, and thereby advancing and promoting LGBT equality as he promised the PAC he would in August of 2007. See attached transcript of Question and Answer (Exhibit 7).

Justice Butler's Responses To Fair Wisconsin (Action Wisconsin) Survey.

Fair Wisconsin (Action Wisconsin)posted an entry on their website March 31, 2008 indicating that they had sent surveys to Justice Butler and his opponent, Justice Gableman, and that only Justice Butler responded to their survey. They posted Justice Butler's responses to their survey (Exhibit 8).
Justice Butler answered the questions about why he wanted to be a Supreme Court justice, described his legal philosophy, and was asked the following question: "Surveys have shown that people who have friends or family who are lesbian, gay, bi-sexual, or trans-gender (LGBT) are more understanding of the prejudices LGBT people face and are less likely to accept negative stereotypes about LGBT people. Do you have any friends or family who are LGBT, and if so, has that relationship affected the way you see injustices facing the community?" Justice Butler responded, "Yes, but I respectfully decline to express an opinion on any issue where the Court may be required to rule." Trying to garner favor with the group by answering "yes" to the first part of the question, Justice Butler's response to the second part of the question confirms that he knew it would be improper to avow his support or favoritism for LGBT equality. This response verified that Justice Butler knew his speech at the fund raising "Garden Party" in support of LGBT equality was inappropriate and unethical.

Interview With Glen Carlson, Fair Wisconsin's (Action Wisconsin's) Executive Director.

Glenn Carlson, Fair Wisconsin's (Action Wisconsin's) executive director, was interviewed by Quest, a Wisconsin gay news organization, in April of 2008, after Justice Butler was defeated in his election bid. In that interview, Carlson admitted Fair Wisconsin (Action Wisconsin) refrained from a formal endorsement of a candidate in the Supreme Court race(everyone knows if they had made a formal endorsement it would have been Justice Butler) because the Wisconsin Supreme Court had pending before it Petitioner's case, in which Fair Wisconsin (Action Wisconsin) was a party (Exhibit 9).

Endorsement Of Justice Butler By Attorney Tamara Packard, Attorney For Fair Wisconsin (Action Wisconsin) In Pending Lawsuit Against Petitioner, And Board Member Of Fair Wisconsin (Action Wisconsin).

However, Fair Wisconsin (Action Wisconsin) delivered Justice Butler their endorsement through the back door. Wisconsin Gay News from Quest, a Wisconsin gay publication, in its edition of March 25, 2008 featured an editorial by Attorney Tamara Packard entitled "Vote for Louis Butler on April 1. The Wisconsin Supreme Court needs a real judge, not a prosecutor". Attorney Packard urged the readers to vote for Justice Butler (Exhibit 10).
Attorney Packard is an attorney in the law firm of Cullen, Weston, Pines & Bach, the law firm representing Action Wisconsin (Fair Wisconsin) and Christopher Ott in the Petitioner's case. In fact Attorney Packard is the one who participated in preparation of the briefs in the Circuit Court, the briefs in the Court of Appeals and the Supreme Court, and conducted oral arguments in the Supreme Court before Justice Butler on January 15, 2008. Attorney Packard previously served on the Board of Directors of Action Wisconsin before they became Fair Wisconsin, was the immediate past president of the Board of Directors of Fair Wisconsin's education fund, and is on the Board of Directors of Fair Wisconsin. In addition to her personal ties to Action Wisconsin (Fair Wisconsin), Attorney Packard filed the motion requesting attorney's fees and costs from the Petitioner. Therefore Attorney Packard's firm would be receiving any attorney fees awarded by the Supreme Court's majority decision.

Press Release Of Action Wisconsin

The press release of Action Wisconsin accusing Storms of advocating the murder of gays was issued on December 8, 2003. At that time the Wisconsin Defense of Marriage Amendment ("WIDOMA") (which was approved overwhelmingly by Wisconsin voters in November of 2006) was about to be introduced in the Wisconsin legislature. Action Wisconsin was aware of this, and referenced this introduction in their press release. Action Wisconsin in their press release, after alleging that Storms advocated the murder of gays in his speech, segued from that allegation to the following: "While conference participants are a clear threat to the security and freedom of the lesbian and gay communities, so too is the state constitution amendment that would codify us as second class citizens. They are both branches from the same tree of intolerance." . . . "When the assembly failed to override Governor Doyle's veto of AB475, Rep. Mark Gundrum (R-New Berlin) accused the governor of being ‘obsessed with the gay agenda', a charge often leveled by hate groups against anyone who supports tolerance. Recently Rep. Gundrum and Senator Scott Fitzgerald announced their intention to introduce yet more anti-gay legislation, this time a proposal to enshrine discrimination in the State's constitution. . . . We also hope that every legislator will think twice before supporting any more hate-inspired legislation."
It is quite obvious that Action Wisconsin, in issuing the press release, was using their false allegation that Storms advocated the murder of gays in an attempt to create a backlash against any legislator who would dare to support WIDOMA. Action Wisconsin used these false allegations against Grant Storms as a trump card to try to verbally intimidate ("enshrine discrimination in the State constitution", "each apparently advocating the murder of his own constituents", "hate inspired legislation", "both branches from the same tree of intolerance"), any legislator who would vote for WIDOMA (the act had to first pass the two legislative houses before being submitted to a referendum vote). In other words, Action Wisconsin was crying out for "LGBT equality", the same goal that Justice Butler avowed his support in his "Garden Party" speech.
Leaving aside the ethical propriety of a sitting Supreme Court justice addressing at an intimate fund raising affair supporters of a group advocating an agenda as controversial as same-sex marriage and pledging his support for their agenda, this conduct by Justice Butler and his failure to disclose to the Petitioner his personal bias on this issue, disqualified Justice Butler from participating in the Petitioner's case.
The Supreme Court has recognized that a court's judgment is void in a case where a participating justice is disqualified by law. Case v. Hoffman, 74 N.W. 220, 222 (Wis. 1898); Jackson v. Benson, 249 Wis.2d 681, 691, 639 N.W.2d 545, 549 (Wis. 2002). The court has recognized that both § 757.19(2) and case law establish a two step test for recusal. Namely an objective test and a subjective test. State v. Walberg, 109 Wis.2d 96, 106, 325 N.W.2d 687, 692. (Wis. 1982). The subjective test is satisfied when the justice in question determines he can be impartial when he participates in the case. Walberg, 109 Wis.2d at 106, 325 N.W.2d at 692-93. However, if the justice's impartiality can reasonably be questioned, therefore failing the objective test, the justice must recuse himself. Id.

Justice Butler Disqualified By Law Pursuant To Wisconsin Statute § 757.19(f) In Violation Of Supreme Court Rules.

Wisconsin Statute § 757.19 enumerates the factual situations that provide for disqualification of a judge, including a Supreme Court justice. Subsection (f) provides that a judge is disqualified if he or she has a significant financial or personal interest in the outcome of the matter. Subsection (3) provides that any disqualification that may occur under Subsection (2) may be waived by agreement of all parties and the judge after full and complete disclosure on the record of the factors creating such disqualification.
SCR 60.03 provides that a judge shall respect and comply with the law, and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. SCR 60.01(8) provides that judge includes a justice of the Supreme Court. The title of SCR 60.03 is "A judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities". Avoiding impropriety and the appearance of impropriety is linked to maintaining the public confidence in the integrity and impartiality of the judiciary. The comment section provides that the test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge's ability to carry out judicial responsibility with integrity, impartiality, and competence is impaired.
Justice Butler's conduct is detailed above. His acceptance of serial contributions from a litigant after vowing not to do so, and his failure to disclose them to the Petitioner, is evidence of Justice Butler's financial interest in the Petitioner's case. Justice Butler avowing his support of LGBT equality at the PAC "Garden Party", and thereby garnering the subsequent endorsement of the PAC, shows not only his financial interest in Petitioner's case, but also Justice Butler's personal interest in the outcome of the Petitioner's case. Justice Butler closely aligned himself with the PAC, and there were numerous connections between Justice Butler and Action Wisconsin (Fair Wisconsin). Additionally the attorney for Action Wisconsin (Fair Wisconsin) who is intimately associated with them (since she has and did serve on the board of directors, and was the past president of the board of directors of the Education Fund) endorsed Justice Butler in a gay magazine Op Ed article. Her connections to Action Wisconsin (Fair Wisconsin) were specified at the conclusion of the article. The appearance of impropriety on the part of Justice Butler is palpable.

Conclusion.

Not only is Justice Butler disqualified in Petitioner's case pursuant to Section 757.19(f), but additionally his conduct violated SCR 60.03. Even after the judicial complaint was filed on March 28, 2008, Justice Butler still failed to disclose to the Petitioner the financial contributions from Action Wisconsin and that he had spoken at the "Garden Party" in favor of LGBT equality. One would hope in light of this compelling evidence that Justice Butler would recuse himself pursuant to the subjective test. However, if he refuses to do so, it appears that he has clearly failed the objective test, and should be disqualified by law. Restoration of public confidence in the impartiality of the decision in the Petitioner's case demands that Justice Butler be disqualified by law, and that a rehearing be granted, and Justice Butler not participate any further in this action. Otherwise, this Court will be answering the three questions at the beginning of this memorandum in the affirmative, which would send a disturbing message to the public regarding the ethical standards for future Supreme Court elections.

Respectfully submitted this _26th__ day of June, 2008.

James R. Donohoo, Appellant
(Petitioner), pro se

Motion for Reconsideration

Memorandum in support of motion for Reconsideration

SUPREME COURT OF WISCONSIN

In the matter of attorneys fees in:
Grant E. Storms, plaintiff v. Action
Wisconsin Inc. and Christopher Ott, defendants.

JAMES R. DONOHOO,

Appellant,

vs.
Appeal No. 2006AP000396
ACTION WISCONSIN, INC. and
CHRISTOPHER OTT, Circuit Court
Case No. 2004CV002205
Respondents.

APPELLANT, JAMES R. DONOHOO'S, MEMORANDUM
IN SUPPORT OF MOTION FOR RECONSIDERATION

The Appellant, James R. Donohoo, would request that the Supreme Court reconsider its opinion of June 5, 2008, and affirm the opinion of the Court of Appeals, District 1, for the following reasons:
1. The Supreme Court majority opinion applied an incorrect standard of law analysis.

2. The Supreme Court majority opinion does not appear to be based on facts, logic, and the existing case law.

3. The Supreme Court majority opinion categorized evidence as worthless that clearly was evidence tended to show that Action Wisconsin issued the defamatory statements with actual malice.

4. Five out of ten justices who have reviewed the evidence and the arguments (two in the Court of Appeals, three in the Supreme Court [dissent opinion]) have found that the lawsuit was not frivolously commenced or frivolously continued. The two Court of Appeals' justices in fact found that the case was clearly not frivolous. Therefore how can the lawsuit possibly be frivolous? And how would Attorney Donohoo have known the lawsuit was supposedly frivolous, since two Court of Appeals' justice and three Supreme Court justices agreed with Attorney Donohoo that the lawsuit was not frivolous?

5. Considering the manner in which the Supreme Court majority overruled the Court of Appeals, namely they did not find that the Court of Appeals had applied an improper standard, but rather merely found that in their opinion the case was frivolously commenced and continued, this ruling will have a chilling effect on the ability of any Christian pastor or other person to speak out against homosexuality, or to commence a lawsuit if statements they would make are twisted beyond any recognition. Additionally it would be next to impossible to find an attorney to represent these persons in a defamation action to restore their reputation.

Storms is a bombastic street preacher, and the Petitioner does not agree with or endorse all of the language used by Storms in his speech. However no matter what language Storms used in his speech, he had the right to defend himself against Action Wisconsin's defamatory statements that Storms was mimicking the killing of gay people when he related the biblical story of Jonathan and his armor bearer, and the defamatory allegation that Storms was advocating the murder of gay people.

The Court Of Appeals' Decision Should Not Have Been Accepted For Review Since The Supreme Court's Decision Documents That None Of The Criteria For Review Were Documented In A Supreme Court Decision.

Wisconsin Statute § 809.62 provides that the Supreme Court review of a Court of Appeals' decision will only be granted if special and important reasons are presented. Subsections (a) through (f) delineate the framework of criteria to be considered, such as a real or significant question of federal or state constitutional law presented, a need for the Supreme Court to consider establishing, implementing, or changing a policy within its authority, a decision of the Supreme Court will help develop, clarify, or harmonize the law, the Court of Appeals' decision is in conflict with controlling opinions of the United States Supreme Court or the Supreme Court or other Court of Appeals' decision, or the Court of Appeals' decision is in accord with the opinions of the Supreme Court or Court of Appeals but due to the passage of time or changing circumstances, such opinions are ripe for re-examination. It is always stated that the Supreme Court is not an error-correcting court which will accept cases for review from the Court of Appeals merely to correct what the Supreme Court perceives was an incorrect application of facts to the existing law.
Despite the Supreme Court accepting this case for review, the majority's decision of June 5, 2008 did not address any of the criteria specified in § 809.62. The Court of Appeals' decision was unpublished, which means it could not be used as precedence. The Supreme Court decision did not address any questions of federal or state constitutional law, did not address any need for the Supreme Court to consider establishing, implementing, or changing any policy within its authority, did not develop, clarify, or harmonize any law either in the area of frivolous claims or defamation law, did not find that the Court of Appeals' decision was in conflict with any controlling opinion of the United States Supreme Court or the Supreme Court or other Court of Appeals' decision, and did not discuss the need for re-examining or changing existing law. The Supreme Court's decision merely overturned the Court of Appeals' decision on the basis that the Supreme Court disagreed with the Court of Appeals' factual decision that the lawsuit was not frivolous, and moreover not even close to frivolous.
The Supreme Court Majority, By A 4-3 Vote In Reversing The Court Of Appeals' Decision, Did Not Find That The Court Of The Appeals Use Any Improper Standard Of Law And Furthermore, Five Out Of Ten Justices Who Reviewed The Case Found That The Lawsuit Was Not Frivolously Commenced Or Continued.

The majority did not find that the Court of Appeals used any improper standard of law in reaching their decision. Despite the fact that the Court of Appeals found that the action clearly was not frivolous, and should have been submitted to a jury, four justices of the Supreme Court, including Justice Butler, found that the case was frivolously commenced and continued. Five out of ten justices who have reviewed this case (two in the Court of Appeals and three in the Supreme Court) found that the lawsuit was not frivolously commenced or continued. The majority's decision reversing the Court of Appeals' decision does not seem to have any basis in fact or law.
Despite the numerous briefs filed by the Petitioner reminding the Supreme Court of the law concerning frivolous claims, the majority opinion applied an incorrect standard of law analysis. The dissent properly noted that the proper legal analysis did not involve the question of whether a reasonable jury would find for Storms on each element he had to prove in his defamation claim, but rather whether a reasonable attorney in the position of the Petitioner could believe it was possible for a reasonable jury to find in Storms' behalf. The dissent noted that both the Court of Appeals and three members of the Wisconsin Supreme Court had concluded that a reasonable attorney in the position of the Petitioner could have concluded that a reasonable jury could find that Action Wisconsin's statement was false.
As noted above, the majority applied an incorrect legal standard in reversing the Court of Appeals and finding the action frivolous. The correct legal standard as cited by the dissent was whether a reasonable attorney in the position of the Petitioner could believe it was possible for a reasonable jury to find in Storms' behalf. The dissent discussed the evidence supporting the argument that Action Wisconsin's statements were false and made with actual malice. The majority basically ignored that issue and rather discussed that since, in their opinion, Storms' speech was ambiguous, and that Action Wisconsin had chosen one of the rational interpretations, namely that Storms was advocating the murder of gays, that actual malice could not be inferred against the Respondents. The majority then engaged in an extremely disingenuous analysis of the voluminous evidence and ?? arguments in the record in support of actual malice. Since the majority characterized all of this extensive evidence of actual malice in the record as worthless, a legitimate question would be what possible evidence could exist in any defamation case that the majority would have found supported a finding of actual malice. Beyond failing to apply the proper standard discussed above, the majority substantially dismissed the page after page of the Appellant's evidence of actual malice with a waive of their hand. Without applying the proper standard and analyzing whether a reasonable attorney in the position of the Petitioner could believe it was possible for a reasonable jury to find in Storms' behalf, the majority summarily concluded that the action was frivolous.
Wisconsin Case Law Provides That A Lawsuit Has To Have No Merit For It To Be Frivolous.

Wisconsin case law provides that all doubts about the reasonableness of a claim must be resolved against the party asserting that the claim is frivolous, unless the claim was brought solely to harass or injure the other party. Baumeister v. Automated Products, Inc., 277 Wis.2d 21, 27, 690 N.W.2d 1, 3 (Wis. 2004). Furthermore a claim is not frivolous merely because there was a failure of proof or because a claim was later shown to be incorrect. Jandrt v. Jerome Foods, Inc., 227 Wis.2d 531, 551, 597 N.W.2d 744,755 (Wis. 1999). Finally in the case of Juneau County v. Courthouse Employees, a Wisconsin Supreme Court opinion authored by Chief Justice Abrahamson, the Supreme Court cautioned that a determination of frivolousness was an especially delicate area, and a Court must be cautious in declaring an action frivolous lest it stifle the ingenuity, foresightedness, and competency of the bar, and that because it is only when no reasonable basis exists for a claim or defense that frivolous exists, Section 814.025 resolves doubt in the favor of the litigant or attorney. Juneau County v. Courthouse Employees, 221 Wis.2d 630, 639-40, 585 N.W.2d 587, 591 (Wis. 1998). To paraphrase, the case has to have no merit to be found frivolous.
The Supreme Court Majority's Opinion Does Not Appear To Be Based On Facts, Logic, Or The Existing Case Law.

The majority's reasoning is best illustrated by a footnote in the majority opinion. The majority stated:
"The dissent asserts that whether Action
Wisconsin's statements were false ‘remains
a fact question for the jury' and that a
reasonable jury could determine that the
statements were false. Dissent ¶114. A
reasonable jury could therefore also
determine that the statements were true
according to the dissent's view."
It appears that the majority believed this footnote exposed a fatal flaw in the dissent's reasoning. To the contrary, the footnote exposed a fatal flaw in the majority's reasoning and analysis. It is true that the dissent's statement warrants the conclusion that a reasonable jury could also have found that the statements were true and not false. But that's the whole point. They said it is true that a reasonable jury could have found that the statements were true or false, then the defamation action was not frivolous as to the element of the falsity of Respondents' statement. The Court of Appeals and three Supreme Court justices have found that not only a reasonable attorney in the position of the Petitioner believe it was possible for a reasonable jury to find in Storms' behalf regarding the element of falsity of the statement, but also as to the element of actual malice. Even the majority did not find that a reasonable jury could not have found that the statements were true, but rather they found that, in their opinion, the statements were true.
Five out of ten justices reviewing Storms' defamation action have found it was not frivolous, with the Court of Appeals finding it was clearly not frivolous. The majority instead of applying the proper legal standard of whether a reasonable attorney in the Petitioner's position could believe it was possible for a reasonable jury to find on Storms' behalf, instead applied the standard that if they did not believe that a reasonable jury would find for Storms on each element of his defamation claim, that the claim was therefore frivolous.
The reality of these observations is stunning. This case should not have been accepted for review (in which case the Court of Appeals' decision reversing the award of attorney's fees would have stood). Once accepted for review, it appears that the majority, instead of concentrating on the valid issue of whether the lawsuit was frivolous, focused their attention on the political theme of homosexuality surrounding this lawsuit.It does not appear that any other explanation can justify the majority's decision, since it does not appear to be based on the facts, logic, and existing case law.
Chilling Effect Of The Supreme Court Majority Decision On Ability Of Christian Pastors And Others To Speak Against The Homosexual Movement's Agenda.

The majority decision will have a chilling effect on the free speech rights of Christian pastors and others to speak out against the homosexual movement's agenda. Despite the record containing voluminous evidence that Grant Storms was defamed, and despite the Court of Appeals' decision that the action was clearly not frivolously commenced or continued, the majority reversed the Court of Appeals on a 4-3 decision. The majority did not find that the Court of Appeals utilized an improper standard of review; the majority basically ignored the Court of Appeals' decision. The majority opinion sends a very clear message. If you speak out against the homosexual agenda, and especially if you use any type of biblical story or strong language, and if there is any scintilla of ambiguity in your speech, watch out. Action Wisconsin or some other similar group may very well issue a defamatory press release against you, alleging that you said something that you did not say, such as you were advocating that people commit murder of innocent people. If you then sue to attempt to restore your reputation, you better be prepared to lose your lawsuit, at least on appeal, and have enormous attorney's fees and costs awarded against you. The message is clear. If you are even thinking of speaking out against the homosexual agenda, forget it. Keep your mouth shut, or be prepared to have homosexual rights activist groups twist your words to suit their political and social agenda.
Additionally you are unlikely to find an attorney to represent you. Any attorney reading the Court of Appeals' opinion and the way in which the Supreme Court majority reversed it, (and realizing that the case should not have even been accepted by the Supreme Court) will realize that unless the attorney is 100% certain (not 99.9%) of his client's defamation claim, he or she better be prepared, at least on the Supreme Court appellate level, to suffer enormous financial sanctions in addition to the besmirching of his or her professional reputation. Consequently pastors or others who speak out against the homosexual agenda in Wisconsin and have their words twisted beyond all recognition in press releases sent around the world, are unlikely to obtain the assistance of an attorney in filing a defamation action.
In Addition To The Supreme Court Majority In Treating Appellant James Donohoo's Voluminous Evidence Of Actual Malice In A Cavalier Fashion, James Donohoo Presented More Than Ample Evidence Of Actual Malice.

As previously discussed, the majority's cavalier treatment of the voluminous evidence supporting actual malice (said evidence having been presented to the trial court, in Petitioner's trial court and appellate briefs, and partially mentioned in the Court of Appeals' decision and the dissent in the Supreme Court) is staggering. Christopher Ott, the executive director of Action Wisconsin and the co-author of the press release, admitted the following:
1. That he knew that Storms' speech exceeded one hour.

2. That he listened to only approximately 20 minutes of the speech or somewhat more.

3. That even after receiving two requests for retraction by Storms, Ott never bothered to listen to the other portions of the speech until the day before his deposition, which was on January 10, 2005.

4. That despite admitting that he only listened to approximately 20 minutes of the speech or somewhat more before issuing the press release, he admitted that the overall context of Storms' speech was crucial to interpreting what Storms said.

5. That in addition to not listening to the entire speech, Ott did not make any notes of the parts of the speech that he did listen to in order to assist him in his interpretation of Storms' speech.

6. Ott admitted that Storms in his speech never made any imperative statements to his audience urging them to go out and kill gay people, and further admitted that he had to use "interpretation" to arrive at that conclusion. He talked about Storms "leaving the door open" to that interpretation, but
admitted Storms never expressly said it.

7. In order to come to the conclusion that Storms was advocating the murder of gay people, Ott indicated you had to complete the analogy.

Ott's deposition testimony showed he did not really believe that Storms advocated the murder of gay people in his speech. The very idea that one could claim that another person advocated the murder of gay people in their speech, and then fall back on the defense that the person didn't explicitly say it but you're interpreting the speech that way, is ludicrous and would have offended any normal person's sensibility and sense of justice.
Joshua Freker, Action Wisconsin's director of communications and the co-author of the press release, testified as follows:
1. He had not listened to Storms' entire speech prior to issuing the press release, but in fact had only listened to approximately 15 or 20 sentences of the speech.

2. That despite this, he admitted that the context of Storms' remarks were important to understanding what he was saying.

3. Even after issuing the press release and receiving two requests for retraction, Freker did not bother listening to the remaining portions of the speech until the night before his deposition held on January 10, 2005.

4. Freker also admitted that Storms never explicitly in his speech urged people to go out and kill gay people.

Additional evidence of actual malice presented by the Petitioner was the failure of Action Wisconsin to respond to two retraction letters, their failure to investigate, the ill will and animus of Ott and Freker towards Storms as disclosed in their depositions, their failure to contact other gay organizations or the local police or FBI regarding the supposed call to murder allegedly issued by Storms, and the use of these defamatory statements by Action Wisconsin in their press release to attempt to advance their legislative agenda.
The majority, instead of considering all of this voluminous evidence of actual malice together, considered each piece of evidence in isolation from the rest of the evidence, an analytical method that defies logic. There is a fundamental rule of logic that when a person presents numerous facts allegedly supporting a conclusion, that the facts must be considered in tandem, and not in isolation from each other. The majority's analysis failed to do this, and to have done so would have required the majority to admit that there was evidence of actual malice, and therefore the lawsuit was not frivolous.
The Supreme Court Majority's Mindset Exposed By Sentence In Majority's Opinion.

One sentence of the majority's decision is not only troublesome, but exposes the majority's mind set. "The fact that there is no language in the speech explicitly stating that members of the audience ought to murder homosexuals says nothing about whether Action Wisconsin was reckless in its interpretation of the speech" (Page 28 of Decision)(emphasis added). The majority went a bridge too far. The majority believed that the fact that Ott and Freker admitted that Storms in his speech did not explicitly advocate the murder of gay people "said nothing about whether Action Wisconsin was reckless in its interpretation of the speech" (i.e. not a fact the majority would consider as any evidence of reckless disregard; in other words, a worthless piece of evidence, of no consequence). Emphasis added. In light of the fact that the majority characterized an obviously strong piece of evidence (admittedly not conclusive) not just as weak, but as worthless, one would have to wonder what evidence the Appellant possibly could have presented that would have persuaded the majority that the action was certainly not frivolous.
Bias And Prejudice Of Circuit Court Judge, Including Smoking Gun.

Because of the Petitioner's attempt to respect the dignity of the office of Circuit Court judge, the Petitioner in his briefs filed in the Court of Appeals and the Supreme Court did not specifically raise the issue of the bias of the Circuit Court judge. The Petitioner in those briefs provided documentation of that bias, but did not call it that or unduly highlight it. The Petitioner has also previously refused to comment to the press's inquiries whether the Petitioner believed that the Circuit Court judge exhibited bias and prejudice in her decision. The apparent bias of the Circuit Court judge in issuing its ruling that the action was frivolous is the elephant in the room. After reviewing the majority opinion, justice does not allow the Petitioner to remain silent any longer.
The Petitioner in his briefs filed in the Court of Appeals and the Supreme Court documented that the Circuit Court judge, among other things, ignored and failed to discuss and analyze the fact that the Petitioner pled all the necessary elements of defamation in the complaint, the defendants failed to respond to two retraction letters, and since Wisconsin has no pre-filing discovery, the Petitioner's only recourse was to commence the lawsuit, the evidence of actual malice existing at the time the complaint was filed, the additional evidence of actual malice obtained through the discovery process, including Ott and Freker's admissions that there were no explicit or imperative statements in Storms' speech advocating the murder of gay people, but rather that you had to finish the analogy or connect the dots to come to that conclusion, that Ott and Freker never listened to the entire speech until the night before their respective depositions, despite having been sued for defamation months before, the fact that the Petitioner had four people review the plaintiff's speech and all four people concluded that the published statements were false, and the facts regarding the relationship between the published statements being false and the existence of actual malice. The Circuit Court judge also went out of her way in her two decisions to demean and denigrate the Petitioner, and at the same time to lavish praise upon opposing counsel.
The Petitioner does not have to rely on the above compelling facts to expose the bias and prejudice of the Circuit Court judge. There is a smoking gun. In his Circuit Court brief, the Petitioner cited the Wisconsin case law confirming that Storms' libel cause of action was actionable without any proof of specific harm to his reputation. The Circuit Court in its decision on summary judgment found that Storms had offered no facts to support a finding of harm to his reputation, but cited no case law. The Petitioner's motion for reconsideration filed in the trial court and the brief in support thereof challenged this erroneous ruling of the Circuit Court. The Circuit Court denied the motion for reconsideration without addressing this challenge. Petitioner in his brief in opposition to respondents' motion for costs and fees again brought this erroneous ruling to the Circuit Court judge's attention and once again referenced the relevant case law supporting Petitioner's contention. The Circuit Court in its decision granting the defendants attorney's fees and costs again ignored the case law cited by the Petitioner in several prior briefs that Storms' complaint was actionable without proving actual harm to his reputation, and the Circuit Court for the second time erroneously ruled that Storms' action was frivolous because he had failed to provide any proof of specific harm to his reputation. The Circuit Court's failure again to present any case law in support of its erroneous ruling, or to present any case law in opposition to the case law cited by the Petitioner, fatally exposed the Circuit Court's bias and prejudice against the Petitioner. This ruling by the Circuit Court judge was incredible. The only explanation for this ruling would be that the Circuit Court judge was biased. Otherwise these repeated erroneous rulings are inexplicable.
The Circuit Court roundly castigated the Petitioner in its decision for failing to conduct proper legal research, and lavishly praised opposing counsel for their legal research and acumen. Ironically a letter from Respondents' counsel, Attorney Pines, to the Petitioner dated July 19, 2004, which was cited by the Circuit Court and the Supreme Court majority in their decisions, stated "Finally, as you know, one key element in defamation cases that the plaintiff must prove is damage to his reputation by the allegedly defamatory statement. Your client has shown that he is utterly unable to prove this." This argument by Attorney Pines, parroted by the Circuit Court in its decision, that the Petitioner had to prove damages to Storms' reputation, contradicted Wisconsin case law as shown above. The Court of Appeals and the Supreme Court decisions recognized the Wisconsin case law cited by the Petitioner. Therefore it appears that when Attorney Pines sent this July letter to the Petitioner, threatening sanctions, he either had not researched the Wisconsin case law before making this frivolous statement, or in the alternative, researched it incorrectly.
Significance Of Statement In Storms' Speech And Relevance Of Rational Interpretations Of Storms' Speech.

The Circuit Court and the majority, in concluding that Storms' speech was ambiguous, ignored what Storms said immediately after the "boom, boom, boom" quote. Storms immediately followed that reference by stating that Jonathan had a willingness to fight, not to stress that Jonathan had killed 20 Philistines. Storms immediately elaborated on this concept of a willingness to fight, discussing his attitude and actions before he was saved. Storms indicated that when he would get into a fight, his attitude was that you may whip him, but you were going to pay a price. He then immediately followed this reference by saying, "That's what we've got to have in this spiritual sense". In the very next sentence, Storms spoke about opposing homosexual marriage and homosexual adoption (part of the homosexual movement). In the very next sentence, he talked about opposing Southern Decadence, and that just as when before he was saved he used to scrap and fight physically, that Christians have to be willing to fight and scrap against homosexual marriage, homosexual adoption, and Southern Decadence. By using the words "in a spiritual sense", he left no room for doubt in the audience's mind that he was not referring to any type of violence against homosexuals.
The majority cited that there was ample case law for the proposition that actual malice cannot be inferred from the choice of one rational interpretation over another (Page 26). They cited the Torgerson case, and indicated that this same reasoning applied in the Petitioner's case, namely that Storms' speech was ambiguous and Action Wisconsin had chosen one rational interpretation, and that as a matter of law, that choice did not demonstrate actual malice. But what the majority didn't recognize is this: This does not mean that the action was frivolous. The Court of Appeals majority decision and the Supreme Court dissent stressed the issue is not whether after considering all of the facts the Circuit Court or an Appellate Court could determine that as a matter of law actual malice could not be proven, but rather whether the Petitioner had a reasonable basis to begin and maintain the action. The party filing the lawsuit in Torgerson was not assessed fees and costs, even though it was decided on summary judgment. As the dissent properly noted, the Wisconsin Supreme Court in Baumeister v. Automated Prods. Inc., when reviewing the issue of frivolousness, the Supreme Court does not look at whether one can prevail on his claim, but rather whether the claim was so indefensible that the party or his attorney should have known it to be frivolous. Baumeister v. Automated Prods. Inc., 2004 WI 148, ¶28, 277 Wis.2d 21, 690 N.W.2d 1.
Conclusion.
For the reasons stated previously, including the five points at the beginning of this memorandum, James Donohoo requests the Supreme Court reconsider its opinion of June 5, 2008, and affirm the opinion of the Court of Appeals, District 1.

Respectfully submitted this _26th__ day of June, 2008.

James R. Donohoo, Appellant
(Petitioner), pro se