Control over the executive and legislative branches of Wisconsin state government apparently isn’t enough for Republicans and their corporate backers. Now they want to curtail the powers of the judicial branch by effectively eliminating circuit court judges’ ability to block unconstitutional state laws.
Wisconsin Manufacturers and Commerce and their Republican allies in the legislature pushed a bill through the Wisconsin State Assembly last June that would automatically nullify an injunction against a state law ordered by a circuit court judge immediately upon appeal. Furthermore, the appeals process is automatically triggered by the filing of any such injunction or restraining order by a circuit court judge.
This proposal comes on the heels of circuit court injunctions of portions of several controversial state laws passed during the Walker regime: Act 10, the law that decimated public workers’ rights to collectively bargain with their employers; Act 23, the voter ID law; and Act 43, the legislative redistricting law.
Sen. Glenn Grothman (R-West Bend), chair of the Senate Judiciary and Labor Committee and sponsor of the senate version of the bill, SB 154 , defends the proposal as a simple administrative tool to speed up the appeals process and help “job creators” and citizens to avoid legal uncertainty.
Grothman’s justification for what appears to be an incursion by the legislature into the constitutionally separate powers of the judicial branch rests on the specious argument that one circuit court judge elected by a small fraction of the state’s population shouldn’t be able to nullify the will of the legislature, which represents a majority of voters in the state.
During a hearing on the bill last May , Wisconsin Manufacturers and Commerce lobbyist James Buchen elaborated on Grothman’s sophistry, saying, “Imposing the views of one county on the state as a whole is offensive. And that’s what we have currently, where one judge in one county can substitute their views for the views of the legislature as a whole.”
But the work of circuit court judges is not to represent the people who voted for them. It is to interpret and apply the law in light of the facts presented to them in formal legal proceedings.
Attorney Lester Pines began his testimony at the May 2, 2013, public hearing thanking the bill’s authors for yet another job creation bill, mentioning that the passage of Acts 10 and 43 caused his firm to create new staff positions to keep up with the litigation work.
Pines went on to describe the painstaking, detailed process judges must go through before blocking a law on constitutional grounds, and objected to Grothman’s implication that Dane County judges were politically motivated.
“I believe that based on 40 years of litigating cases all over this state, circuit court judges are not swayed by political considerations and very carefully try to apply the law,” Pines said.
Pines warned the committee, “This law is unconstitutional on its face, it will be declared unconstitutional, and it will likely be declared unconstitutional in an original action in the state Supreme Court. So if you pass it, all it’s going to do is create additional litigation, which I will be happy to conduct.”
Andrea Kaminski of the Wisconsin League of Women Voters shared Pines’s concerns about SB 154 calling it “more of a power issue than a partisan issue.” Speaking of the constitutional balance of powers between the three branches of government, Kaminski said the bill “would damage this fundamental safeguard, which protects the rights of citizens from abuse of governmental power.” She explained, “If a judge can’t block a law that he or she has deemed unconstitutional, then there’s no balance of powers in government.”
SB 154 now awaits final passage in the state Senate after being voted out of the Senate Judiciary and Labor Committee last month. It will likely come up for a vote in October.
Rebecca Kemble reports for The Progressive magazine and website. She also participates when she can in the Solidarity Sing Along.