Ending most collective bargaining rights for most public employees.

Requiring photo identification to vote.

Hunting wolves.

Over the past two years, these signature laws passed by Wisconsin’s Republican-run Legislature hit speed bumps if not outright roadblocks when judges in Democratic-leaning Dane County issued orders halting their implementation.

Frustrated by what they see as liberal judges out to thwart their agenda, GOP lawmakers are proposing an end-run around lower court judges who try to stop state laws from taking effect.

“There have been a few high-profile laws ... that are obviously constitutional (that) were held up by Dane County Circuit Court judges, and we felt they were doing it for political reasons,” co-sponsor Sen. Glenn Grothman, R-West Bend, told members of the Senate Committee on Judiciary and Labor, which he chairs.

“That a new law can be put on hold by an activist judge that may represent less than one-half of one percent of the state’s population is offensive.”

But the Legislature’s own nonpartisan legal agency is warning that the proposed law itself may be unconstitutional. And there are signs Republican leaders are rethinking whether to push forward.

Alyssa Moyer, a spokeswoman for Senate Majority Leader Scott Fitzgerald, R-Juneau, said the measure is unlikely to be taken up by the Senate before the Legislature approves the budget and leaves for summer break.

And although the Assembly gave the proposal tentative approval on a party-line vote last month, Kit Beyer, a spokeswoman for Assembly Speaker Robin Vos, R-Rochester, said there’s no guarantee it will get a final OK any time soon.

Marquette University Law Professor Peter Rofes said he’s not surprised lawmakers appear to have hit the pause button.

Rofes said the proposal is a “knife that cuts both ways,” a tool that could just as easily be used by Democrats to push their agenda if they regain control of the Legislature and the governor’s office.

In addition, Rofes said appeals judges, including the current Supreme Court, are unlikely to look favorably on a law that could be seen as usurping their authority.

“I think there are very good reasons — reasons rooted in politics and reasons rooted in constitutional law — to be cautious about this,” he said.

Under companion bills sponsored by Grothman and Rep. David Craig, R-Big Bend, any time an appeals court or circuit court judge issued an order blocking implementation of a state law, that order would immediately be suspended if the matter were appealed to a higher court within 10 days.

However, the higher court could reimpose the judge’s earlier order if it chose, under the companion measures, Assembly Bill 161 and Senate Bill 154.

Goal: Don’t let judge
dictate state laws

Craig said in a statement that the goal was to “ensure that one judge cannot unilaterally prevent the implementation of state law without the possibility of an expedited review by a higher court.”

The measure passed Grothman’s committee on a party-line 7-4 vote last month, with committee member and attorney Sen. Fred Risser, D-Madison, warning the proposal would remove a safeguard against enactment of laws that are “confusing” or that violate the state Constitution.

Critics say it also would give any attorney defending a law the power to single-handedly overturn a judge’s order — at least temporarily — by filing an appeal.

Bill praised, criticized

It’s not just Democrats who are raising questions about the proposal.

The nonpartisan Legislative Council, responding to a request from Rep. Christine Sinicki, D-Milwaukee, said such a law may be unconstitutional under the so-called separation of powers doctrine that holds that judicial, executive and legislative branches have powers that cannot be usurped by the other.

According to a May 1 memo from the Legislative Council, the state Supreme Court has held that each branch has some “core” powers that cannot be exercised by another branch. In addition, there are “shared” powers in which “one branch of government may not unduly burden or substantially interfere with another branch,” Legislative Council attorneys Anne Sappenfield and Anna Henning wrote.

The provision that would likely spark a legal challenge, they said, is the one requiring an automatic halt to a judge’s restraining order or injunction once an appeal to such an order is filed.

“If the court views the power to stay a court order as exclusively within the power of the judicial branch,” the attorneys wrote, “the court may rule the provision unconstitutional.”

Attorney Lester Pines, who has filed successful challenges to several GOP-passed laws, told Grothman’s committee the measure is “an infringement on judicial independence, it violates the separation of powers.”

Andrea Kaminski of the League of Women Voters, which filed one of the two challenges to the voter ID law in Dane County, agreed.

“If a judge can’t block a law that he or she has judged unconstitutional,” Kaminski told the committee, “then there’s no balance of power in government.”

James Buchen, representing Wisconsin Manufacturers and Commerce, the state’s largest business group, testified that the proposal would serve as a check against judges who disagree with the legislative majority based on the political climate of the county or region where they serve or their own views.

“At the end of the day, they (judges) are elected officials, too,” Buchen said. “As a result, I think judges from time to time do feel either compelled by public pressure or public opinion or they themselves hold the views of the vast majority of their constituents.”

Despite uncertainty over when the Assembly might take up a final vote, Vos has said the proposal “brings balance to the separation of powers and doesn’t stop the court from being able to do its duties.

“Rather it expedites due process — for both political parties — so that there can be certainty for people impacted by laws.”

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(12) comments

pikerover

"Reasonable Republicans" are going to be primaried. Ask Dale Schultz about that.

jiminkeno

In the case of the voter ID law theres a really big fact everyone seems to ignore. It's the exact same law indiana passed and the US supreme court upheld as constitutional. So I propose a different law. If a political hack judge declares a law un-constitutional that the supreme court has already ruled is. They immediatly lose thier job and pension and can never be a judge in wisconsin again. Problem solved, all judges will enforce the law.

Wis_taxpayer
Wis_taxpayer

I agree with jim..... just look back at the judicial decisions by conservative judges in Wisconsin that have been overturned by higher courts, if jim's laws would have been in effect say 10 years ago there would be no judge Prosser, Gabelmann, Roggensack, or Ziegler on the court today! Great idea Jim keep em coming!

witness2012

Jim, the difference between Wisconsin and Indiana is that the state constitutions are different and Wisconsin's constitution explicitly defines voting as a fundamental right which sets the bar very high for imposing restrictions on it.

The legislation- which came from a template bill from ALEC- may be the same, but since the constitutions are different, you're not likely to get the same court decision.

So, to change a Wisconsin policy, you may need to amend the state constitution if that is an outcome you want. If you feel a judge is ruling inappropriately, you can pursue filing a complaint with the Judicial Commission or just wait for it to be overturned by a higher court.

witness2012

Brown v Board of Education which directed all public schools to integrate had very little popular support when it was issued in 1954. Certainly not in Little Rock, AK, in 1957, when the governor himself tried to defy the law, forcing Eisenhower to send in federal marshalls to enforce it.

But, we all agree that the Brown decision correctly reflected the constitution and its provision even if it didn't reflect popular will. And, practically speaking, it was important for the country that integration became policy even if people didn't like it. It was our only hope of avoiding the type of violence we saw in South Africa under apartheid. It was the right thing to do.

Judges are supposed to use the constitution as their guide and be somewhat protected from popular sentiments so they can do their job. That protection is being eroded as we are seeing judges who face elections be punished for their political actions or views. I'm thinking explicitly about the judge in Washington county who was defeated because he signed a recall petition though everyone agreed his judicial behavior was impeccable.

When this administration overreaches, the courts are all that is left to stop them. Instead of accepting that, they consistently go after the institutions that dare to contain their power. The GAB, now, not funding the circuit court system in the state.

They have no shame and don't understand the concept of balance. They overreach and there will be pushback.

reality22

I don't mind a Judge raising constitutionality of laws that are enacted. BUT, if they prove to be conditional that judge needs to be judged in some way & their appointment or election needs to adjusted. After the second or thrid time they challenge a law and it proves to be constitutional they face reelection in the next election or allow them to be reappointed immediately.

Civil_Citizen

It's embarrassing that a tool like Grothman can be elected to State office.

Nav

This crop of Republican legislators has shown NO original thinking. They are not what I would call "critical thinkers". I doubt they really sit down together and discuss how they can truly do something for the people of Wisconsin that people would find helpful.

Instead of seeing bills that would help create jobs in Wisconsin or improve the economy, this legislature pushes bills on topics the every day people have NO interest in, and find odd. This is a tone deal legislature that needs to be voted out as soon as possible.

Willac

Continuing the coup as Republicans are used by a wealthy few to take America's democracy out of the hands (votes) of the multitude ...

Wis_taxpayer
Wis_taxpayer

On the other hand...... if this law goes through, and Democrats take power again, which they will sooner or later. Think of what the Democrats can do! Pass new restrictive voting ID laws requiring ID's that a lot of Republicans don't have, but more Democrats do have.

Require fewer voting machines in heavy Republican areas. Limit voting hours in Republican districts. Eliminate early voting all together in Republican districts. Pass a new law allowing for redistricting when a new party takes control.

I assume that the Republican response to something as extreme as this from the Democrats would be to sue to have the courts issue an injunction to stop the........ oh wait.

livesteam2

Senator Grothman says, “That a new law can be put on hold by an activist judge that may represent less than one-half of one percent of the state’s population is offensive.” It's an interesting quote from someone who in representing people of a district and a state makes decisions that impact thousands and even millions of Wisconsin citizens does so while only considering the information from a few like minded (republican) persons. What is offensive to me is that Wisconsin's citizens must rely on individual judges to study the legality of laws passed by a body whose job is to govern for the benefit of citizens of the state, not for the benefit of a party.

Liberalsmakesense

The Republican legislature in Wisconsin is trying to usurp the powers that legitimately belong to the courts. They seem to have forgotten that there are THREE equal braches of the Government, and each has an important role to play.

We all know why the legislature is trying to do this. It is all a part of ensuring that they will remain in power indefinitely. They do not realize, however, that it is having the opposite effect as people are seeing through their schemes and will make sure they do NOT remain in power come election time.

Let us encourage reasonable Republican legislators to oppose this type of a bill which is CLEARLY unconstitutional, and a bill that even this conservative Supreme Court is likely to oppose.

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