The Milwaukee Post

June 20, 2014 • Milwaukee County Post • 9 It is not possible to bollix something up bureaucratically more than a bunch of addled and agenda-driven county clerks mis- handled one week's worth of same-sex mar- riage license applications. Almost comically, these clerks raced to issue licenses to gay couples with no legal authority to do so and the state attorney general almost pleading with them to stop breaking the law. All told, 60 of Wisconsin's 72 clerks issued these ille- gal licenses but no clerk made a bigger fool of herself than Waukesha County's hapless Kathleen Novack. It all started when federal Judge Barbara Crabb ruled that the Wisconsin Constitution's definition of marriage as being between a man and a woman violated the U.S. Constitution. Crabb did not issue an order with her ruling and went home for the weekend. But the county clerks in Milwaukee and Dane counties immediately opened their doors to gay couples and began issuing marriage licenses. The others fol- lowed suit on Monday. Novack cartwheeled her way into work Monday morning and gleefully ordered her staff to issue licenses to any two people who walked in, regardless of their individual genders. The attorney general of the state, the oth- erwise mild-mannered J.B. Van Hollen, was astonished. Since Crabb's ruling did not contain an order about how to proceed, Wisconsin law was still in effect. He told all of the clerks to stop violating the law. They ignored him. Waukesha County's Novack brazenly blew him off. "I know what his position is," she told me, as if Van Hollen was on a highway department road crew and not the No. 1 law enforcement official in the state. Even Crabb knew the clerks were acting without authority. By Wednesday she declared, "I never told any clerk to issue any licenses." By Friday Crabb issued her order and immediately "stayed" it, meaning it does not take effect. This is what has hap- pened in every other state where judges have struck down laws banning gay mar- riage. The rulings sit on hold while the cases head to the U.S. Supreme Court. But not Wisconsin. Nope. Here we had a bunch of idiot clerks who either don't understand how the law works or willingly ignored it to make a point. Several prominent Republicans in Waukesha County begged Novack to stop breaking the law. But she issued licenses right up to the point that Crabb issued her stay. That happened last Friday afternoon. Novack didn't even stick around to halt the illegal license-issuing. An aide told me at 3 p.m. Novack was gone for the day. The chick- en clerk had flown the coop. In the process, several hundred Wisconsin gay couples have gotten married. No one knows the legal status of these wed- dings. Lawsuits are certain. It's all because Wisconsin is stuck with some county clerks either too dumb to do their jobs or so brazen- ly partisan they decide to, with no legal authority, break the law. This is life in the Age of Obama. We have a president who won't enforce laws at the border. He's willy-nilly changing his own signature health law, Obamacare, whenever he feels like it. He's ordered federal prosecu- tors and drug agents to stop enforcing many drug laws. When the president of the United States decides to ignore whole swaths of fed- eral law, it probably isn't surprising that some goofy county clerks do the same. To their credit, the clerks in Racine, Washington and Ozaukee counties never jumped on the bandwagon. Racine County's Lynn Christensen was especially heroic given that her county is evenly split between Democrats and Republicans. But Ozaukee, Washington and Waukesha are overwhelm- ingly Republican and conservative. Waukesha's Novack not only violated the law, she ignored the wishes of the voters who trusted her to respect our laws. * * * I wrote in this column last week that gay marriage is an American inevitability. But the legitimate way is to have elected officials or voters change the law rather than have judges override the democratic process. Many states are in the same boat as Wisconsin. Their laws ban gay marriage and federal judges have overturned them. Only the Supreme Court can sort this out. In every state where a judge has over- turned gay marriage bans, the rulings have been appealed. Not one case has even made it to the U.S. Court of Appeals. Rather than have appellate courts issue contradictory rulings, the Supreme Court ought to take up the issue in its fall term later this year. The issue is profound. Do individual states have the right to set their own qualifi- cations for marriage? Or, can the federal government order states to marry same-sex couples? The constitutionalists on the court (and there are four of them) are likely to rule for states' rights. The liberals will go the other way. Justice Anthony Kennedy will issue the deciding vote. It could be worse. It could be up to Kathy Novack. (Mark Belling is the host of a daily WISN radio talk show. His column appears weekly in the Milwaukee Post.) MARK BELLING STANDING UP for MILWAUKEE OPINION No excuse for ignoring the law Clerks to blame for unknown status of same-sex marriages The Democratic primary race for attor- ney general is shaping up to be a strange contest of wills. Unfortunately for the vot- ers, the contest seems to ask: Will any of the candidates actually do the job? Attorney General J. B. Van Hollen has decided to not run for re-election after two terms in office. Into the fray have sprung three Democrats and one Republican to hopeful- ly head to Madison as the state's top law enforcement officer. Waukesha County District Attorney Brad Schimel is the lone Republican run- ning for the office. He has been a good dis- trict attorney and is running as a proven prosecutor who believes in law and order. Dane County District Attorney Ismael Ozanne is the first of three Democrats run- ning for attorney general. He is perhaps best remembered as the district attorney who refused to prosecute dozens of pro- testers who were arrested for unruly con- duct in Madison. Jefferson County District Attorney Susan Happ is the second Democrat run- ning for top cop. Her most renowned recent accomplishment is pleading down the third OWI of former Democratic Party spokesman Graeme Zielinski to a first- offense OWI on the eve of her announce- ment to run for attorney general. The third and final Democrat running for attorney general is state Rep. Jon Richards from Milwaukee. Richards hangs his hat on being a liberal obstructionist in the Assembly for the past few years and a tireless defender of the unions. As the debate rages between these can- didates, it is striking how often they seek to define themselves not by what they would do should they be elected as the attorney general, but what they would not do. All three of the Democrats vow that they would not defend the state's ban on gay marriage, even though it is written in the state Constitution. They also agree that not one of them will defend challenges to recent laws regarding abortion like the one requiring that abortionists have admitting privileges at a local hospital. As the challenges to Wisconsin's voter identi- fication law continue to make their way through the courts, the Democrats running to lead the state's highest law enforcement agency are unified in vowing to drop those appeals too. The attorney gener- al is a constitutionally elected statewide office in Wisconsin. It is part of the executive branch, but the attorney general has great latitude in how he or she prioritizes the office. As head of the state Justice Department, the attorney general is responsible for everything from the state crime lab to managing crime victim com- pensation. The attorney general has a lot of responsibilities. One of the primary responsibilities of the office, however, is to defend the state's laws in court – even if the lawsuits pertain to a law with which they disagree. If the attorney general refuses to defend the state, the state can still choose to defend the law, but has to pay for private representation instead of using the attor- neys already paid for by the taxpayers. There are only two legitimate reasons for an attorney general to decline to defend the state. One reason is if the attorney gen- eral has a severe conflict of interest in the case. The second reason, and the one under which the Democratic candidates are hid- ing, is if the attorney general thinks that the law to be defended is unconstitutional. If the attorney general thinks a law is truly unconstitutional, it must be a very high standard. After all, the job of the state's top lawyer is not to make laws or decide if they are constitutional, but to enforce and defend them as written. If the attorney general takes it upon himself or herself to use the power of the office to thwart laws they oppose, then the officeholder becomes the wielder of a sec- ond veto pen. That is a power never grant- ed to the office in the Constitution or any- where else. Irrespective of whoever wins the elec- tion this November, let us hope that he or she approaches the office with humility and respect for the rule of law that they have failed to show to date. (Owen Robinson is a West Bend resident. His column runs regularly in The Post.) Attorney general candidates vow not to uphold laws Dems running for top cop would use de facto veto power Robinson

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