“It is my duty to apply the law as it is written and not as I may wish it to be.” This catchphrase was a regular feature of Wisconsin Supreme Court Justice Rebecca Bradley’s 2016 campaign stump speech. The other members of the Court’s conservative majority have professed a similar devotion to objective legal analysis.
When conservative jurists tout their objectivity, they are implying that their liberal counterparts play fast and loose with the law. The liberal judicial tradition does, indeed, feature inventive concepts like substantive due process and penumbral reasoning. Cynics sometimes refer to the employment of such legal devices as “making shit up.”
Lately, at the Wisconsin Supreme Court, the conservatives have been the ones making shit up. As two recent decisions demonstrate, they’ve been doing so with an audacity uncontemplated in liberal legal circles.
In March, the Court heard oral arguments in Enbridge Energy Company, Inc. v. Dane County. The dispute began in 2015, when Enbridge requested a permit to operate a new pipeline pumping station. Aware of Enbridge’s propensity to spill oil, the county Zoning & Land Regulation Committee required the company to purchase special pollution insurance.
In short order, a provision applying to “an operator of an interstate hazardous pipeline” was slipped through the state Legislature. Dane County would not be allowed to require special insurance as long as Enbridge carried “comprehensive general liability insurance coverage that includes coverage for sudden and accidental pollution liability.”
“Sudden and accidental” is an insurance industry term for a particular type of liability. Enbridge’s public financial statements claimed that they carried it.
But in a 2015 report he prepared for the county, internationally recognized insurance expert David Dybdahl contradicted this claim. According to Dybdahl, what Enbridge carried was actually “time element” pollution coverage.
Enbridge refused to share any further insurance documentation, even in the course of litigation, citing a need to protect “trade secrets.” So all the court had to work with was “time element” coverage, and the new law said “sudden and accidental.” Anyone who bought the justices’ spiels about applying the law as written must have assumed Enbridge’s goose was cooked.
Instead, with encouragement from Wisconsin Manufacturers and Commerce, the conservative majority gave Enbridge the win. To explain why, they then made some shit up. Writing for the majority, Justice Rebecca Bradley noted some variation in how the term “sudden and accidental” is used in the insurance industry. This, supposedly, gave her license to treat the term as if it had no industry-specific meaning at all. She looked up “sudden” and “accidental” in several dictionaries and found ways in which the terms could be used to describe incidents that “time element” insurance covers. Voila. As Dybdahl pointed out to me, Wisconsin insurers will now have to somehow treat these two different types of coverage as the same thing.
A couple months after Enbridge, the Court heard a case challenging the legitimacy of the “extraordinary session” that state legislative leaders called in December 2018. Lawmakers used the session to curtail the powers of the incoming governor and attorney general.
A lower court opinion demonstrated that neither the Wisconsin Constitution nor state statutes authorize extraordinary sessions. The constitution specifies that, aside from “special” sessions called by the governor, the Legislature shall meet “at such time as shall be provided by law.” The statute that governs the timing of legislative meetings, titled “Regular sessions,” lays out a number of guidelines. One requires the development of a work schedule at the beginning of each session.
Why shouldn’t the Legislature just meet whenever it pleases? In a brief filed with the lower court, a group of legal scholars explained that there was widespread distrust of state legislatures at the time of Wisconsin’s constitutional deliberations. So “state constitutions of this era, including Wisconsin’s, incorporated an array of features to constrain and regularize the lawmaking process, including limits on when and how the Legislature could meet.”
For the 2017-2018 biennium, the Legislature did put together a detailed work schedule, as required. But the schedule included a provision saying, basically, that the Legislature could meet whenever it wanted. This, of course, defeats the point of the schedule requirement.
But the conservatives didn’t want to invalidate the extraordinary session. So they eschewed the plain meaning of the “Regular sessions” statute and opted instead to make some shit up. The Court ruled that, instead of being a constraint, the work schedule requirement “confers on the Legislature ... the right to construct its own work schedule” (emphasis mine). So the Legislature can meet whenever it pleases after all.
In her dissent, Justice Rebecca Dallet pointed out that the majority’s conclusion renders the controlling constitutional clause, “as shall be provided by law,” completely meaningless. It should be astonishing to see a liberal justice school her conservative colleagues like that, on the importance of objective legal analysis. But with no signs of the shit storm abating, we’re sure to see much more of it.
Michael Cummins is a Madison-based business analyst