By: Brian Sikma
Last Wednesday and Thursday, two legislative committees heard testimony about a proposed judicial reform bill designed to show deference to higher court judges and bring more certainty to the legal system. The measure creates an expedited review process for trial court injunctions that suspend or otherwise invalidate state laws. It does not change the judiciary’s power to review and hold laws unconstitutional.
The intent of the legislation’s authors is to respect the separation of powers while also respecting the democratic process and the experience of appellate court judges. “Our bill reaffirms that the three branches of government remain separate,” state Rep. Dave Craig (R), one of the authors of the bill, told an Assembly committee last Wednesday.
Trial courts in Wisconsin are served by county level judges elected in spring elections by a fraction of eligible voters. These judges juggle several different types of cases over the course of their careers as trial judges, and in other states – and on the federal level – trial court judges limit their rulings to their own jurisdiction. Wisconsin has seen a rash of decisions made by local judges trying to make their interpretation of the law binding statewide.
A case in point is the Act 10 ruling by Madison judge Juan Colas. Colas held in September of 2012 that the collective bargaining reforms did not apply to certain local governments and their union counterparts. The debate over whether or not his decision has statewide force ended up embroiling the Milwaukee County Board in yet another scandal when Board Chairwoman Marina Dimitrijevic authorized secret negotiations with a local AFSCME union that no longer had legal standing to negotiate with the county.
Lawmakers backing judicial reform note that not only does it allow the judiciary to place a check on itself through an expedited appeals process, but it also means judges elected by small numbers of voters can’t overturn the will of the entire legislature elected after millions of Wisconsin citizens participated in the electoral process. If a legislatively enacted law is indeed unconstitutional, it would be up to the appeals court and the Wisconsin Supreme Court to overturn the legislature, not lowly trial court judges, proponents argue.
“Obviously any individual circuit court judge represents only a small part of the entire state,” state Sen. Glenn Grothman (R), an attorney, testified. Grothman said that when a law does conflict the state constitution, lawmakers want that problem to be decided for good by the Supreme Court, not a trial court judge at the county level. “As quickly as possible when that happens we should wind up in the Supreme Court,” he declared.
Some lawmakers are suspicious of the bill, but their arguments against it at the hearing meandered from expressing their personal feelings to suggesting the Republicans backing the measure are not considering how they may want to use the legal system some day for political purposes.
Rep. Fred Kessler (D) was the most coherent opponent at the Assembly hearing on Wednesday.
A former judge, Kessler cleverly ignored the plain text of the bill to argue that the measure would render all trial court decisions powerless. Blustering about his experience, expertise, and deep study of the bill, he accused reform advocates of completely doing away with trial court injunctions. The bill, he insisted, did not specifically address an expedited appeals process simply for injunctions invalidating state law.
Kessler was wrong.
The legislation declares, in legal terms, that it is indeed a process exclusively reserved for decisions invalidating state laws.
“If a circuit court . . . enters an injunction . . . suspending or restraining the enforcement of any statute of this state, the injunction, restraining order, or other final or interlocutory order is immediately appealable as a matter of right.”
Lawmakers hope to get a committee vote on the judicial reform bill sometime soon.
