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Wednesday, Dec. 5, 2012

Reforms, What Reforms?

Walker’s big agenda fails in the courts

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It’s not unusual for big policy reforms, such as the ones backed by Gov. Scott Walker and the Republican-dominated state Legislature, to be challenged in the court system.

But what is unusual is for so many of those policies to be declared unconstitutional, said experts watching the cases wind their way through the courts.

Judges have struck down or put on hold three of the Republicans’ big reforms—the gutting of public employees’ bargaining rights, the voter ID law, and Walker’s attempt to shift power from the state Superintendent of Public Instruction to himself—although the state Supreme Court upheld the Republicans’ disregard for the open meetings law, which allowed the collective bargaining bill to be voted on with a mere two hours’ notice.

“People may bring challenges, but successful challenges are unusual,” said Madison attorney Lester Pines, who has represented multiple suits taking aim at Walker’s policies. “Usually the Legislature is careful about what it does and legislators used to listen to what people told them. But when you have legislators that are acting like cult members and not like legislators, it’s hard to talk to them. They don’t want to listen. That’s the problem. It is unprecedented.”

Assembly Minority Leader Peter Barca (D-Kenosha) said that the Republicans’ reforms were legally questionable because “they weren’t intended to help the public. They were intended to help the Republican Party.”

Pines echoed that, saying, “This administration has no respect for the law. They have respect for one thing: their own power and aggregating power. They have no respect for the courts.”

He cautioned that the public shouldn’t assume that the conservative majority on the state Supreme Court would automatically side with the Walker administration if the cases wind up in the state’s highest court.

“The justices will take them very seriously,” Pines said.

Barca said he didn’t have a final tally of how much money was spent on private attorneys who helped to defend the state in these cases.

The attorneys’ fees just for the drafting and defense of the new legislative map has been put at $1.9 million, but the state has spent hundreds of thousands of dollars on private attorneys’ work on other cases in the courts.

Walker’s spokesman, Cullen Werwie, did not respond to the Shepherd’s request to comment for this article and provide the amount spent on outside counsel.

 

Unconstitutional Collective Bargaining Bill

Parts of Walker’s signature reform bill, Act 10, which gutted collective bargaining rights for public employees and made the governor a national “right-wing rock star,” has been shot down a few times in the state and federal courts, although some of the law remains in effect.

In a state case brought by Madison Teachers Inc. and a City of Milwaukee employees union, Dane County Circuit Court Judge Juan Colas found that Act 10’s prohibition on employers negotiating with workers on wages violates Wisconsin’s constitution. The September decision affects municipal and school employees, some of whom are now re-opening negotiations with their employers. The state is appealing the decision in the Fourth District Court of Appeals. The City of Milwaukee has asked to join the lawsuit.

“Judge Colas’s decision overturning parts of Act 10 is important because it returns to Wisconsin’s public employees the right to have a voice in the workplace,” said John Matthews, executive director of the Madison teachers’ union. “That is the foundation of social justice in employment relations, and [it] is among the founding principles of Wisconsin.”

The Wisconsin AFL-CIO and other unions challenged Act 10 in federal court and received a mixed decision by U.S. District Judge William Conley in March. Like Colas, Conley found that Walker’s prohibition on dues deductions from employees’ paychecks and the supermajority requirement for union recertification were unconstitutional. But Conley found that the state could create different bargaining rules for general employee and public safety employee unions. Both the state and the unions are appealing the decision in the Seventh District Court of Appeals in Chicago and are waiting for a decision.

The Wisconsin Law Enforcement Association filed suit in Dane County in November, arguing that the inclusion of capitol police, University of Wisconsin police and Department of Motor Vehicles field agents in Act 10—when other law enforcement employees were excluded from the law’s reach—violated their rights under the state constitution.

Pines, who represented the plaintiffs in the case decided by Judge Colas, estimated that the state paid outside attorneys Michael, Best and Friedrich at least $500,000 for their work on the state and federal Act 10 cases.

 

Voter ID Requirement Never Implemented

The Republican majority passed a broad voter ID law in 2011, but voters never had to show photo identification when casting a ballot, since the law was declared unconstitutional twice and put on hold. The League of Women Voters of Wisconsin successfully challenged the law when Dane County Circuit Court Judge David Flanagan found that the state constitution did not grant lawmakers the power to limit voter eligibility and create a new requirement for voting. The court of appeals upheld Flanagan’s injunction. It’s currently in the court of appeals.

A suit brought by the Milwaukee branch of the NAACP and Voces de la Frontera in state court also struck down the law. The groups showed that the ID requirement would be an undue—and unconstitutional—burden on more than 200,000 Wisconsin voters who lack an acceptable form of ID. The state is appealing the decision.

Attorney General J.B. Van Hollen had asked the state Supreme Court to take up both of those cases directly, but the court has declined to do so.

In addition to the state cases, the ACLU of Wisconsin and others sued in federal court in Milwaukee under the U.S. Constitution in which they argue that the voter ID requirement is an undue burden on voters and is, in effect, an unconstitutional poll tax.

 

Overruling the State Superintendent and the GAB

In addition to these high-profile cases, judges have struck down other Republican reforms:

  • In Act 21, Walker expanded his executive powers—and the Republican-dominated Legislature readily confirmed them—by requiring that all agency heads submit their proposed administrative rules to the governor for approval before they could be approved by the Legislature and implemented by the agency. The state secretary of administration also has a say in rules that involve more than $20 million in expenditures.

In October, Dane County Circuit Court Judge Amy Smith ruled in a case brought by Madison Teachers Inc., the Wisconsin Education Association Council and others that Walker and the state Legislature did not have the authority to require the state Superintendent of Public Instruction to adhere to the new procedure, since that office is written into the state constitution as an independent one with ultimate power over public instruction.

Pines, who represented the unions, said Smith’s ruling was as significant as the successful challenges to the voter ID and the collective bargaining laws because it preserves the state superintendent’s power to weigh in on Walker’s education reform measures, such as expanding voucher or charter schools at the expense of public schools.

“The last thing that this governor and this Legislature want is an independently elected state Superintendent of Public Instruction drafting the rules about charter schools,” Pines said. “The independent superintendent might draft rules that hold charter schools accountable.”

State Superintendent Tony Evers agreed with Smith’s decision. On Monday, conservative Republican Rep. Don Pridemore of Hartford announced that he would run for state superintendent, which scheduled for election next spring.

  • In March, the state Legislature lost a redistricting case in federal court brought by Voces de la Frontera and others. The ruling struck down two districts Republicans had created on Milwaukee’s near South Side, which would have diluted the Latino vote had they gone into effect. All other districts could remain as Republicans drew them, in secret, at the Madison offices of Michael, Best and Friedrich.

The state has paid an estimated $1.9 million on outside attorneys—primarily Michael, Best—for drafting and defending the new legislative maps. But the private attorneys’ conduct was so unbecoming that the judges fined them $17,500 personally for filing frivolous motions and refusing to release all requested documents. After the court’s decision, news emerged that the law firm still had not released all of the relevant documents.

  • Earlier this year, Walker’s campaign lost its attempt to require the state Government Accountability Board (GAB) to verify the hundreds of thousands of signatures on petitions requesting Walker’s recall. Previously, the campaign of the targeted elected official was required to verify the signatures. But Waukesha County Circuit Court Judge Mac Davis ruled in January that the GAB had to take on that responsibility. GAB spokesman Reid Magney told the Shepherd the board spent more than $94,000 on setting up a database for the signatures before Davis’s order was overturned and Walker’s campaign had to verify the signatures.

On Monday, Senate Majority Leader Scott Fitzgerald (R-Juneau) said he wanted to replace the retired judges who make up the GAB board with political appointees.

  • In November, train-maker Talgo, Inc., sued Walker and the state Department of Transportation, alleging that the state has defaulted on its contract with Talgo to build trains for the Milwaukee-Chicago Amtrak line. Talgo said it has built the trains, but the state hasn’t used them or paid the company for them. The state is on the hook for $50 million if it loses the case.
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