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Wednesday, June 22, 2011

Supreme Lawlessness

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When a governor and a majority in the Legislature start destroying decades of individual rights and governmental responsibilities, the only real protection citizens have is the rule of law.

In Wisconsin, the state Supreme Court is the final authority on the law. When the governor and legislators resort to lawlessness, the court has the responsibility to stop it.

That is, if the court itself considers upholding the rule of law to be more important than petty, partisan politics.

Sad to say, in Wisconsin, it doesn't.

The decision by the majority of the Wisconsin Supreme Court claiming that legislative Republicans did not have to obey the state's open meetings law in passing Gov. Scott Walker's bill destroying union bargaining rights was shocking.

People all across the state should have been outraged by the court's lawlessness.

Instead, very few were surprised the four-member Republican majority on the court—two of who previously faced corruption charges—made a corrupt decision.

But we should never become so jaded by growing political corruption in our state that we're not shocked when a state Supreme Court justice who went to law school writes that a circuit court judge who threw out an illegally passed bill was wrong to rely on laws “that apply to the Legislature except when the Legislature says they do not.”

That phrase comes from the opinion of former Republican legislator David Prosser, who recently squeaked to re-election on the court after a Waukesha County clerk failed to report 14,000 votes for two days.

(In the bad, old days of real election fraud, political machines would routinely hold back a couple of wards until all other votes were counted so they would know how many votes their candidate needed to win.)

But the shenanigans behind closed doors in Waukesha County pale in comparison to Prosser's first legal opinion since the election, claiming Republicans in the Legislature have the right to decide whether to follow state laws.

Under the rule of law, politicians from the president of the United States on down do not get to decide which laws apply to them.

Watergate proved not even President Richard Nixon was above the law. Nixon seriously told interviewer David Frost that if the president did something, it wasn't illegal—apparently not even running a burglary ring out of the White House.

Nixon's conservative Supreme Court ruled unanimously against the ridiculous claim, which was why Nixon resigned.

The Wisconsin Supreme Court had a chance to partially repair its damaged reputation after previously documented unethical legal conduct by Justices Annette Ziegler and Michael Gableman and Prosser's own sleazy re-election campaign.

A unanimous decision by the court, simply restating the basic legal principle that no one—not even Walker and legislative Republicans—can violate our laws, would have demonstrated that any legitimate court places upholding the law above petty politics.

Except that this one isn't legitimate and it doesn't.

The predictable Republican majority—Prosser, Ziegler, Gableman and Pat Roggensack—voted in lockstep against requiring legislators to follow the law.

(Some analysts refer to this as a conservative majority on the court. It's not conservative. It's Republican. Conservatives actually believe in the rule of law.)

Decision Devoid of Facts


Chief Justice Shirley Abrahamson, joined by Ann Walsh Bradley and N. Patrick Crooks, pointed out just how historically devoid of facts and supporting case law the majority decision was.

“The order and Justice Prosser's concurrence are based on errors of fact and law,” Abrahamson wrote. “They inappropriately use this court's original jurisdiction, make their own findings of fact, mischaracterize the parties' arguments, misinterpret statutes, minimize (if not eliminate) Wisconsin constitutional guarantees and misstate case law, appearing to silently overrule case law dating back to at least 1891.”

As embarrassing as the lack of legal content in the majority decision was, the circumstances surrounding its sudden release were just as embarrassing.

On a Monday, Republican Assembly Speaker Jeff Fitzgerald said if the Supreme Court did not rule by the next day, the Legislature would have to pass a law abolishing collective bargaining again, doing it legally.

Clearly, Republicans did not want to do that. When Circuit Judge Maryann Sumi enjoined the law with a court order because legislators had violated the state's open meetings law, she noted all Republicans had to do was meet again and pass it legally.

But with six Republican state senators facing recalls this summer for voting for the unpopular law, clearly many Republicans did not want to vote on it again.

Fitzgerald was publicly begging the Supreme Court to spare Republicans further political embarrassment. The next day, the Republican court majority obediently issued the hastily written opinion Fitzgerald requested endorsing Republican lawlessness.

The political game in Wisconsin is now officially fixed. By abandoning the rule of law, Republican Supreme Court justices have declared their own political party no longer has to obey the law.

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