Conservative Justices Annette Ziegler and Rebecca Bradley accused the liberal partisans on the state Supreme Court of trying to “fast-track” the Act 10 appeal so they can overturn the signature legislation that has saved Wisconsin taxpayers billions of dollars.
The two conservative justices wrote the scathing indictment of their liberal colleagues Jill Karofsky, Rebecca Dallet, and Ann Walsh Bradley after swing justice Brian Hagedorn recused himself from the case.
Liberal Janet Protasiewicz also did not participate in the order Jan. 30 denying the Republican-controlled Legislature’s request for a two-week extension on Act 10-case arguments. Republicans filed a motion to have Protasiewicz recuse herself from the case; she previously prejudged it as unconstitutional, participated in protests against Act 10, and signed the Scott Walker recall petition.
“The majority gives it three business days. There is absolutely no reason to deny the Legislature’s request unless three members of this court wish to fast-track yet another politically charged case for the purpose of overturning settled law on an issue already decided by this court eleven years ago. The Legislature passed Act 10 nearly 14 years ago, and this court upheld its constitutionality, including on the equal protection grounds argued anew in this case,” wrote Ziegler and Bradley in a dissent.
Control of the court is at stake in the April election. Former Republican AG Brad Schimel (a Waukesha County Judge) and leftist Dane County Judge Susan Crawford are competing to replace Walsh Bradley, who is retiring.
Crawford previously bragged, “I fought against Act 10.” As a private lawyer for the firm Pines Bach in 2012, Crawford helped convince a Dane County judge to strike down “significant portions” of Act 10, according to the firm’s website.
“By the best estimate, the Act 10 reforms saved Wisconsin taxpayers between $18 billion and $31 billion since 2012,” per the Badger and MacIver Institutes.
The Wisconsin Institute for Law and Liberty says rolling back the limitations on collective bargaining adopted more than a decade ago in Act 10 would cost local governments in Wisconsin nearly $500 million.
The then-conservative majority on the Wisconsin Supreme Court upheld Act 10 in 2014, and a federal appellate court did so as well that same year.
Hagedorn recused himself because he was chief legal counsel for Gov. Scott Walker when Act 10 was crafted. “Recusal is not optional when the law commands it. After reviewing the filings and the various ethical rules I am sworn to uphold, I have concluded that the law requires me to recuse from this case. The issues raised involve matters for which I provided legal counsel in both the initial crafting and later defense of Act 10, including in a case raising nearly identical claims under the federal constitution,” he wrote.
Because of the overt partisanship on the court, it’s widely believed that, without Hagedorn and Protasiewicz, the vote to overturn Act 10 would be 3-2. The vote would be 4-2 if Protasiewicz participates.
If Schimel wins and Protasiewicz doesn’t recuse, then the vote would presumably be 3-3 and the case would be kicked back to the Court of Appeals. If Schimel wins and Protasiewicz joins Hagedorn in recusing, Act 10 would likely not be overturned. Supreme Court Justices are not supposed to be partisan, but the justices have thrown that out the window.
“In the past, a party’s requested extension would have been granted in the ordinary course by the Chief Justice, but the new majority rewrote the court’s internal operating procedures to strip the Chief Justice’s powers for the very purpose of expediting the new majority’s preferred cases. This order needlessly and inexplicably compresses the Legislature’s time to respond, demanding undue haste where no legitimate urgency exists,” Bradley and Ziegler wrote.
