Wisconsin’s state supreme court was once a very liberal court. It overturned convictions of murderers based on technicalities that the U.S. Supreme Court deems irrelevant, and had nothing to do with guilt or innocence. It also allowed lawsuits against innocent companies simply because they were part of an industry that allegedly engaged in wrongdoing, basing paint companies’ liability on their market share in their industry, rather than their conduct, and it even overturned statutory limits on lawsuits.
Such rulings ended after liberals lost their majority on the court in the 2008 election.
But the state supreme court now looks likely to become liberal all over again, due to an upcoming judicial election next Tuesday. Liberal voters enraged over the state’s new law limiting collective bargaining with government employee unions are expected to turn out in droves to replace State Supreme Court Justice David Prosser, a one-time Republican legislator, with his liberal opponent, JoAnne Kloppenburg.
A win by Kloppenburg would give liberals a 4 to 3 majority on the state supreme court. Polling shows Prosser and Kloppenburg neck-and-neck, but absentee voter turnout is running higher in liberal areas like Madison than in conservative areas, and Kloppenburg’s supporters have outspent Prosser’s. Prosser has also been dragged down by false allegations about his record as a prosecutor 33 years ago.
It is widely assumed that the outcome of the election Tuesday will determine whether or not the Wisconsin Supreme Court strikes down the new collective bargaining law. I’m not sure whether that’s true, since Kloppenberg would not take office immediately after the election even if she wins.
A judge in Madison has put the state’s new collective bargaining law on hold. (She did not recuse herself despite having family ties to opponents of the law). She claims its passage violated an Open Meetings Law passed years earlier, a claim that’s contrary to the conclusions of non-partisan legislative analysts and attorneys and law professors. I’ve explained elsewhere why the judge is wrong, and the judge has never bothered to address those arguments. Even if the judge’s interpretation of the Open Meetings Law were correct, it wouldn’t matter, because later-passed statutes trump earlier-passed ones. This ruling is now on appeal to the Wisconsin Supreme Court.
But the election could have a huge effect on other areas of the law, resulting in higher taxes and less protection against violent crime for Wisconsin residents in the future.
In New Jersey, for instance, a liberal judge recently blocked limits on state aid to education enacted under conservative Governor Chris Christie (R), even though New Jersey has some of the nation’s highest taxes to pay for education spending that is among the highest in the nation. Over the last generation, liberal state courts have repeatedly ordered legislators to spend more on things like welfare, public housing and schools, while repeatedly striking down statutes limiting lawsuits. In Wisconsin, a revived liberal state supreme court may do many such things, potentially striking down “almost everything” recently enacted in Wisconsin (like lawsuit-reform), not just limits on collective bargaining.
The judge who blocked the new collective bargaining law, Maryann Sumi, issued an injunction that only named certain state officials (since they were the ones sued), then got mad when other state officials went ahead with publishing the law. This flunks Judging 101. Injunctions don’t bind people unless they are named in an injunction or in privity with those that are. She didn’t name the officials she now claims shouldn’t have published the law.
As the U.S. Supreme Court has said, it’s a basic legal “principle” that you cannot be “ bound by a judgment” in a case in which you have not been sued: “This rule is part of our ‘deep-rooted historic tradition that everyone should have his own day in court.’ …A judgment or decree among parties to a lawsuit resolves issues as among them, but it does not conclude the rights of strangers to those proceedings.”
In short, Judge Sumi is ignoring settled legal principles in her efforts to thwart the new law limiting collective bargaining.
