State Supreme Court Is Radically Activist

One of the striking characteristics of the conservatives on the Wisconsin Supreme Court is their eagerness to take over cases from the lower courts, rather than lie back and let cases percolate through the legal system. Here are several examples.

Coronavirus case

Wisconsin Legislature v. Andrea Palm.

The Wisconsin Supreme Court accepted this case as an “original action” in response to a request from the Republican leaders of the state Legislature. “Original action” means that legislators did not need to first go through the circuit court or the Court Appeals. You can see the case’s history here.

The court ruled in a 4-3 decision on May 13 of this year that Health Secretary Andrea Palm needed legislative approval of her emergency order in response to the COVID-19 pandemic. Joining Chief Justice Patience Roggensack’s majority decision were Justices Annette Ziegler, Rebecca Bradley and Daniel Kelly. Justices Ann Walsh Bradley, Rebecca F. Dallet and Brian Hagedorn dissented.

Since the legislators refused to negotiate with Palm or Governor Tony Evers, the orders expired.  The result was a spike of COVID-19 cases in Wisconsin, peaking in late July.

Voter purge case

Timothy Zignego v. Wisconsin Elections Commission

Unlike other cases on this list, this is not an example of original action. Rather it is an example of an attempt to skip the Court of Appeals and take the appeal directly to the Supreme Court. The petition to bypass the appeals court failed because it received support from only three Justices (Roggensack, Ziegler, and Rebecca Bradley). Kelly, facing reelection, did not participate. Anne Walsh Bradley, Dallet and Hagedorn did not support the petition.

The case, currently scheduled for arguments in late September, is an attempt to force the Wisconsin Elections Commission to purge the voter rolls of people who did not respond to a mailing from the Commission. This mailing was based on an interstate database, called ERIC, of voters who may have moved based on other information, such as registering a vehicle at a different address.

While the district court supported the voter roll purge, its ruling was overturned by a three-judge Appeals Court panel. State law states that, “If the elector … fails to apply for continuation of registration within 30 days of the date the notice is mailed, the clerk or board of election commissioners shall change the elector’s registration from eligible to ineligible status.” The appeals court judges concluded “board of election commissioners” refers to the local election commissioners in the city and county of Milwaukee, not the state Elections Commission.

DPI Case

Koschkee v. Evers (now Taylor).

This case, another original action, started when Evers was Superintendent of Public Instruction and Scott Walker was governor. The issue was whether rules from the Department of Public Instruction are subject to approval from the governor. In a decision in 2016 the Wisconsin Supreme Court decided that a new law that required this was unconstitutional. However, membership on the court had since changed.

The Koschkee case resulted in two decision, the first of which concerned the question of whether the DPI and its Superintendent have the right to counsel of their choice. The Wisconsin Department of Justice under Attorney General Brad Schimel argued that it alone should represent DPI and Evers even though the DOJ disagreed with Evers. In an unsigned opinion in June 2018, the court ruled that the department and its superintendent had the right to their own counsel. Justices Rebecca Bradley, Michael Gableman, and Kelly disagreed.

The second decision came a year later. In June 2019, in a 4-2 decision, the court majority decided that, prior to drafting or promulgating an administrative rule, the Department of Public Instruction and its Superintendent must receive written approval from the governor. Voting in the majority were Justices Roggensack, Ziegler, Kelly and Rebecca Bradley. Justices Anne Bradley and Rebecca Dallet dissented.

The limits of academic speech

Marquette v. McAdams

This case, in which the Wisconsin Supreme Court bypassed the Court of Appeals, challenged Marquette’s discipline of a faculty member who had publicly attacked a graduate teaching assistant in his blog. Justice Kelly wrote the 63-page majority decision, joined by Justices Roggensack, Gableman, and Rebecca Bradley. Justices Ann Walsh Bradley and Shirley Abrahamson dissented.

Lame duck session

During the lame duck session, between the defeat of Walker and the inauguration of Evers, the Republican-dominated Legislature passed a number of laws which Walker signed. Generally, these were aimed at enhancing the power of the Legislature against that of the newly elected Democratic governor and attorney general. This led to several legal challenges.

An example is Service Employees International Union (SEIU) v. Robin Vos. Justice Dallet comments: “This case was snatched from the circuit court in its infancy, on the eve of the first trial on the challenged provisions. Consequently, the facts have not been developed and the parties have not had the opportunity to amend their pleadings to conform to those facts.” She goes on to list the many issues, both factual and legal, that will have to be decided.

Again and again, conservatives on the Wisconsin Supreme Court have snatched cases they find interesting away from lower courts, both the district courts and the court of appeals. Yet it is a basic principal that the trial court is the finder of fact, to which appellate courts owe deference.

Like the federal court system, Wisconsin’s has a hierarchical structure. Both Wisconsin and the US have three layers: district courts which, in most cases are the entry level for cases to establish the facts and then apply the law. Then if anyone is unhappy with that outcome, they can appeal to the next level, the appeals court. At the third level, things stop. There is no place to appeal further, no matter how wrong the outcome. Presumably, America’s founders decided that three levels is the right tradeoff between the search for perfect justice and the need to get to some definite answer.

Being at the top of the pyramid, as Wisconsin Supreme Court justices are, has drawbacks. One is the tendency to arrogance. It is easy to equate a lack of accountability with superior wisdom and intelligence. One’s decisions, since they cannot be reversed, are proof of infallibility.

Conservative Justices on the Wisconsin Supreme Court seem to have fallen into the infallibility trap. When it appears that lower court judges seem poised to decide a case differently than they would, the current “conservative” Justices are poised to jump in to prevent this “error.” This is an exceptionally activist approach.

With a few exceptions, briefs are written by advocates, people who are hired to push one side of the argument or the other. Judges, by contrast, are not paid to be advocates. For a thoughtful justice, the ability to review a trial court’s reasoning and conclusions should be an advantage, not a threat.

Finally, an appellate process unmoored from factual findings or a fully developed record is antithetical to the legal ideal of justice. The traditional symbols of impartial justice, the blindfolded figure to indicate impartiality, or the balanced scales, are thus rendered obsolete. Instead, this snatching of cases from the lower courts could be more accurately represented by a partisan figure peeking from under the blindfold, or a heavy thumb placed on a scale, causing it to tip to one side.