How Legislature is Bypassing the Courts

Foxconn chairman Terry Gou and Governor Scott Walker signing a memorandum of understanding. Photo by Jeramey Jannene.

While Foxconn appears to be getting unprecedented special privileges in our court system, the GOP-dominated legislature actually paved the way for this with a bill that was introduced back in 2013.

Under the current Foxconn bill, any lower court ruling is automatically suspended if the company appeals, and the company can go straight to the Wisconsin Supreme Court if the high court agrees to take it.

As outrageous as this is, it follows the path laid out in 2013 Assembly Bill 161, which was signed into law by Gov. Scott Walker on March 27, 2014, as 2013 Wisconsin Act 156.

That law allows any company or individual to immediately appeal an injunction by a lower court judge if that judge suspends the implementation of any state statute.

So, for instance, say the legislature passed a law allowing companies to dump hazardous waste into our waterways, and a company started to do so. It’s likely that an environmental group would immediately challenge that in court, and it’s quite possible that a circuit court judge would issue an injunction against the company and suspend enforcement of that law. The company could challenge that injunction, and now, under this law, rather than having to wait to see the outcome at trial, the company could take it straight up to the appellate courts and then the Wisconsin Supreme Court, which is in reliably pro-business hands.

This was a conscious and deliberate move by the GOP-dominated legislature to take power away from the judiciary and make it easier for companies to appeal decisions they didn’t like.

“We authored this legislation to address the legal uncertainty Wisconsin residents and businesses are subject to as a result of injunctions on state statutes – injunctions ordered by judges only elected by a fraction of our state’s population,” said State Representative David Craig in public testimony on May 1, 2013. “One judge cannot unilaterally prevent the implementation of state law without the possibility of an expedited review by a higher court.”

Then-State Senator Glenn Grothman (now Congressman) offered the same rationales. “The current process causes unnecessary uncertainty for job creators and residents of Wisconsin,” said Grothman, the author of the companion bill in the State Senate. “The idea 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.”

The Brennan Center for Justice in New York was alarmed by the legislation.

“This undermines the very purpose that injunctions serve, in preventing the irreparable harm that is likely if the government is allowed to violate citizens’ constitutional rights until all litigation and appeals have concluded,” it wrote. “A fair and independent judiciary is a cornerstone of our democratic system, and we should be extremely skeptical of efforts by the legislative and executive branches to intrude upon the powers bestowed on the courts.”

Andrea Kaminski of the League of Women Voters of Wisconsin testified against it, saying, “If a judge can’t block a law that he or she has judged unconstitutional, then there’s no balance of power in government.”

Madison attorney Lester Pines also testified against it, calling it an “infringement on judicial independence” and adding, “It violates the separation of powers.”

The only person to testify in favor of it was a lobbyist for Wisconsin Manufacturers and Commerce, the state’s most powerful business group.

The legislation passed along partisan lines: 57-39 in the Assembly and 18-14 in the Senate.

So let’s be clear: The bending of our judicial process for private companies did not begin with Foxconn. The legal precedent – and the malicious reasoning behind it – was laid out and enacted several years ago.

It’s all part of the “private sector knows best” and “Wisconsin is open for boondoggles” philosophy that Walker and Company ascribe to. And under this philosophy, such niceties as the traditional functioning of our judicial system, well, they just have to give way.