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Wednesday, June 22, 2011

Has the Wisconsin Supreme Court Become Hopelessly Partisan?

And is the Republican state Legislature now above the law?

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How stunning and strange was the state Supreme Court's decision to uphold the dubiously passed collective bargaining bill?

So strange that even Chief Justice Shirley Abrahamson, writing in her dissent, argued that the four justices in the majority were engaging in “disinformation.”

So strange that Justice Patrick Crooks argued in his dissent that it was “rather astonishing” that the court would take up the case without having a complete record of facts to work with.

Strange or not, in one fell swoop last week the state Supreme Court chose to take up the legal challenge to the Republican-backed collective bargaining bill and decide it at the same time.

The court had heard oral arguments June 6 on whether to take the case or not.

While some—including former Supreme Court Justice Janine Geske, who was appointed to the bench by former Gov. Tommy Thompson—predicted that it would be weeks before the state's highest court acted, others seemed to have a heads-up about the court's quick work on the case.

According to emails obtained by WKOW 27 in Madison, Republican legislators had assured local leaders in Sheboygan County that the Wisconsin Supreme Court would decide the matter before Wednesday, June 15. The Assembly had been scheduled to begin deliberating the state's biennial budget bill on Tuesday, June 14, and had threatened to insert the collective bargaining material into the budget if the state's highest court didn't weigh in by the end of the June 14 workday.

The conservative-led court delivered its decision just in time, as Republicans waited in caucus last Tuesday. Its decision allows Republicans to avoid taking yet another politically toxic vote on the collective bargaining provisions.

Confidence in the Court

Jay Heck, executive director of Common Cause of Wisconsin, said that the politically tinged decision does nothing to restore Wisconsinites' confidence in the state Supreme Court's independence. Not only did the conservative majority come through with a sympathetic decision for its Republican legislative allies and Gov. Scott Walker—as widely predicted—but it did so just in time to allow Republicans to avoid taking another politically charged vote on the collective bargaining bill.

The court even “skipped a couple of steps” when taking and deciding the case, former Justice Geske said, which allowed the majority to act with unusual haste to meet the legislative deadline.

“The timing of the decision was extremely unfortunate, that the Republicans were calling for it to come out on Tuesday, then you have all of these processes that the court normally does not use and it comes out on the day that the Republicans ask for it,” Geske said. “From the perception of justice, which is what I'm worried about, it just confirms that sense that many people have that it's a partisan court. That's distressing.”

Heck agreed.

“That's the problem with this decision,” Heck said. “It's so wrapped up in partisan politics that it just really undermines confidence in the Supreme Court, which already has been pretty low. It's just not held in the same regard as it used to be.”

The Decision's Ripple Effect on Other Laws

So what does it all mean?

At its most basic level, the four “conservative” justices—Michael Gableman, David Prosser, Patience Roggensack and Annette Ziegler—decided that Dane County Circuit Court Judge Maryann Sumi did not have the power to block the enactment of a bill passed by the full Legislature.

Nor, the majority wrote, did the Legislature violate the Wisconsin Constitution when it convened a committee within two hours of posting the notice of that meeting on three bulletin boards in the state Capitol.

In May, Judge Sumi had decided that the committee had violated the state's open meetings law when a committee failed to post notice in the required emergency notice period of just two hours to create a stripped-down version of the collective bargaining bill. The open meetings law normally requires 24-hour notice of all governmental hearings and specifically gives a judge the power to void any action taken at a meeting that violates the law.

So did Judge Sumi overreach? Or is the open meetings law unconstitutional? Is the state Legislature now above the law, as Assembly Minority Leader Peter Barca argued after the decision was released?

Marquette University Law School associate professor Edward Fallone said the decision laid the groundwork for future challenges to “good government” laws, such as campaign finance disclosure, ethics laws or open access to public records.

“I think you're going to see a series of separation-of-powers challenges saying that the Legislature doesn't have to follow these laws, with citations to this opinion,” Fallone said.

Fallone argued that the Supreme Court dodged the entire question of the Legislature's ability to pass a law that restricts its operations while specifically giving the court the power to enforce that law.

“Instead of addressing that question in light of the Wisconsin Constitution and in light of precedent in other states that have dealt with that sort of question, the court, with no real citation to authority, and in a very short discussion, just declares that the Legislature cannot pass such a law, end of story,” Fallone said. “This is not going to be on anyone's list of the best-reasoned legal opinions of the year.”

Heck, from Common Cause of Wisconsin, said that the decision was just one more step in the unraveling of safeguards against corruption in government.

“It's sort of like, if the Legislature doesn't have to abide by the open meetings law, then why should it abide by ethics laws?” Heck said.

What's Next for Open Meetings Requirements?

When it comes to the future of the open meetings law, you won't find many clear answers in the nine-page majority decision.

Rick Esenberg, visiting assistant professor at Marquette University Law School and policy adviser for the conservative/libertarian Heartland Institute, said the majority's decision only applies to the Legislature.

“This [decision] confirms a line of cases which basically says the judiciary can't invalidate an action of the Legislature for failure to comply with a statutory rule of process, which the open meetings law clearly is,” Esenberg said.

But former Justice Geske said the majority's order failed to shed light on how the state's open meetings law can be applied in the future.

“That's my major objection to this whole thing,” Geske said. “The role of the court is to take these difficult issues. But it's as much—if not more often—for laying out for the future what law applies and what doesn't.”

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