Something's rotten in the Badger State.
I've had a day now to more thoroughly digest the decision of the Wisconsin Supreme Court voiding Judge Sumi's ruling that the collective bargaining bill be permanently enjoined because its passage had violated the state's Open Meeting Laws.
Since my initial shock wore off a lot of questions have moved into its place: Why did the court issue its opinion so quickly, just eight days after hearing oral arguments? Does this essentially call the Open Meetings Law unconstitutional, giving our legislators unfettered power to hold meetings and push through bills without public knowledge or input? Did the Republicans know the court was going to rule when and how it did, given the number of postponed meetings and sessions that day?
I'm not one to yell 'activist judges' in a crowded theater, but I'm also not alone in this case in suspecting that something is definitely amiss on our high court.
Rick Ungar, writing at Forbes, has by his own admission "read more cases in my life than I could possibly count and never -- and I mean never -- has anything I've seen so much as approached what I read in this case." Ungar went on to lay out his concerns clearly:
When the Chief Justice of the highest court in the state feels moved to accuse those in the majority of recreating the facts to meet a desired decision, this is a court that is in extraordinary crisis.
And if Chief Justice Abrahamson is correct in her assessment, Wisconsin now finds itself in a period where their highest court decisions can no longer be relied upon when assessing the law.
Indeed, Chief Justice Shirley Abrahamson's dissent is positively excoriating in the context of Supreme Court opinions. She's essentially accusing the majority not of mistaken application of the law, but rather, as Ungar explains, a "perversion of the facts."
That's a huge problem. We are, after all, talking about the highest court in the state -- the one that makes decisions on which all lower court cases strive to base their decisions. If the highest court has been tainted by partisanship or even just the level of discord necessary to prompt a sitting Chief Justice to write such accusations, then I'm not sure how we can trust any of their decisions until there's an entirely new set of justices.
Even former Supreme Court Justice Janine Geske, now a distinguished professor of law at Marquette University's Law School, says she was "disconcerted" by the quick ruling: (h/t Cognitive Dissidence)
"They had five hours of oral argument and issued a complicated decision within a week," Geske said in a telephone interview. "They didn't use their usual process."
..."You want to establish the law for the future," Geske said. "Cases always are urgent. But the court always takes its time."
Instead, the court acted on the day the Legislature was prepared to vote again on the collective-bargaining law. The court issued its decision late Tuesday afternoon.
Indeed, the timing of ruling's release was highly suspicious. I'd been at the Capitol all day, waiting and waiting some more as first the Assembly postponed its session from 11 a.m. to "4 or 5 p.m." after it was decided that a meeting of the Joint Committee on Retirement Systems was necessary at 4 p.m. in order to vote on the collective bargaining provisions to be inserted into the budget (so as to circumvent the court entirely).
Then the committee meeting was postponed, too, first from 4 to 5, then to 6 p.m. -- at which point I walked out of the room to get some fresh air, only to be greeted by the news that the Supreme Court's ruling was imminent. Convenient, no? Seems very much like certain people got word a little earlier than others that the decision was coming, and knew to keep postponing related meetings until it was issued.
The ironic thing is, though, that Gov. Walker and Republican legislators may not have been entirely pleased with the timing. They'd been preparing to pass collective bargaining with some additional tweaks so as to make it more, you know, constitutionally sound than the original bill. They may still do that, though certainly they must be pleased that the bulk of the controversial provisions will no longer need to be debated along with the rest of the budget, a process that would have undoubtedly taken quite a long while and given those unwashed hippies in the rotunda an excuse to keep singing and banging those infernal drums.
So even if the right hand isn't communicating entirely effectively with the other right hand, one can't help but wonder why they seem to be talking at all.
Money may have something to do with it.
Let's run down the facts of who is taking dollars from whom, shall we? Justice David Prosser, in addition to claiming claiming in his campaign that he would be a "common sense compliment to both the new administration and legislature," has been the beneficiary of some Koch-fueled cash. A group calling itself "Citizens for a Strong America" ran ads in support of Prosser and attacking challenger JoAnne Kloppenburg -- but, according to SourceWatch, CSA doesn't actually have any employees or offices. It is, however, registered to the same street address and building in Milwaukee as the David Koch-led group "Americans for Prosperity."
Prosser's former chief of staff from when he was the Republican Assembly speaker, Brian Schimming, used to be a registered lobbyist for Georgia Pacific, a Koch-owned company. A former administrative aid of Prosser's, Ray Carey, is currently a lobbyist for Koch Companies Public Sector, LLC.
Meanwhile, Justice Michael Gableman took took $6,859.52 from KochPAC in March 2008, and Justice Annette Ziegler took $8,625 from them in March 2007. Ziegler also benefitted from a whopping $2.2 million ad, telephone and direct mail campaign by Wisconsin Manufacturers and Commerce when she ran in 2007, and another $400,000 from Club for Growth Wisconsin. WMC threw its weight behind Gableman as well, to the tune of $2 million.
Gableman, of course, was found by a "three-appellate-judge panel…in 2009 to have violated two separate provisions of the Wisconsin code of judicial ethics" as a result of his campaign's ads that outright lied about incumbent Justice Louis Butler's record. The Supreme Court later deadlocked on the case. Unsurprisingly, it was Justices Prosser, Ziegler, and Roggensack (who joined Gableman in striking down Judge Sumi's decision) who didn't feel as though their colleague's ethics violation were serious enough to warrant actual disciplinary action.
That decision was one of the earliest signs that the new make-up of the court was leading to serious fissures, not to mention a more right-wing slant.
We're seeing the fruits of those monetary efforts now, in deeply suspicious rulings like the one handed down on Tuesday. Like Ungar suggested, then, it won't be until there are entirely different Justices sitting on the bench before Wisconsin can trust its highest court again.
In the meantime, it might be best to invest in air fresheners.
