Wisconsin remains “Ground Zero” in collective bargaining court battle

Premature declarations of victory have been all the rage in Wisconsin this year…

April’s hotly-contested Wisconsin Supreme Court elections – putting Wisconsin at “Ground Zero” for an attempted political ploy to overturn recently-passed legislation by seizing control of the state supreme court – saw union-backed challenger JoAnne Kloppenburg prematurely declare victory in what could have been a decisive strategic takeover (she actually lost by thousands of votes).

Earlier this week, supporters of the legislation restricting some elements of public employee collective bargaining similarly declared victory when the Wisconsin Supreme Court, in a 4-3 decision (Justice Prosser, who had just defeated Kloppenburg in April’s election, cast the tiebreaking vote) upheld the law against a court challenge pressed by the state employee’s union.

The challenge hinged upon a provision of the state’s open meetings law calling for 24-hour notice and posting of government meetings.  A lower court (Judge Maryann Sumi, presiding) agreed with the challenge and temporarily barred the law from taking effect; however, that court’s ruling was marred by the close ties of the judge with union activists (Judge Sumi’s son, Jacob Sinderbrand, is a political operative for the state union plaintiffs), warranting her recusal from the case.

As the Milwaukee Journal Sentinel reported (“Supreme Court reinstates collective bargaining law“),

The court ruled that Dane County Circuit Judge Maryann Sumi’s ruling, which had held up implementation of the collective bargaining law, was in the void ab initio, Latin for invalid from the outset.

“The court’s decision …is not affected by the wisdom or lack thereof evidenced in the act,” the majority wrote. “Choices about what laws represent wise public policy for the state of Wisconsin are not within the constitutional purview of the courts. The court’s task in the action for original jurisdiction that we have granted is limited to determining whether the Legislature employed a constitutionally violative process in the enactment of the act. We conclude that the Legislature did not violate the Wisconsin Constitution by the process it used.”

The court concluded that Sumi exceeded her jurisdiction, “invaded” the Legislature’s constitutional powers and erred in halting the publication and implementation of the collective bargaining law.

The Wisconsin Supreme Court’s ruling set off another wave of celebrations and recriminations – both once again premature, since

almost without missing a beat, these same unions filed a federal lawsuit the very next day (June 15) in the Western District of Wisconsin.

The new lawsuit presses wide-ranging constitutional claims of 1st and 14th Amendment violations (including the bizarre claim to “constitutional right to automatic dues deductions” – the removal of which “interferes with “the ability to finance their unions’ free speech and associational activities.”) (Click here for a more detailed analysis of the federal lawsuit and its implications, including):

But this issue has already been decided by the U.S. Supreme Court.  In 2009, Chief Justice John Roberts authored an opinion in Ysursa v. Pocatello Education Association that upheld Idaho’s ban on automatic payroll deductions for the union dues of state government workers.  That ban did not violate the unions’ First Amendment rights since the government has no obligation to subsidize unions’ political speech.

Despite the lawsuit’s tenuous (at best) legal basis and overwhelming weight of precedence against them, the union plaintiffs have cause to be at least cautiously optimistic for near-term success.  Why?

Under the current assignment order in the Western District of Wisconsin, this new case has already been assigned to Chief Judge (and Obama appointee) William M. Conley, who was confirmed last year.  The unions were probably cracking open the champagne as soon as they found this out on June 15.

Conley has a track record of supporting plaintiffs making identical arguments in a number of past cases as a litigator, including an amicus brief in a U.S. Supreme Court case, as well as several federal circuit court cases.  As a just-released analysis notes,

So the unions have, unfortunately for the citizens of Wisconsin, snagged a federal judge who is clearly in line with their views on forced dues payments to unions.  Whether Conley can set aside his biases on this issue and render an objective opinion on the unwarranted claims the unions have advanced in this political lawsuit is an unanswered question.   But given the history and background of the overwhelmingly liberal, activist, “empathetic” judges that President Obama has advanced to the bench, there are reasons for grave concern.

The ongoing “progressive” takeover of the courts is the greatest single threat to individual liberty and our system of government that exists today.

The battle lines are clear; and the fight is unrelenting.  Those who would use the courts to advance a partisan political agenda – instead of insisting that the courts maintain their proper role of defending the Constitution and the rule of law – are ruthless, well-organized, well-funded, and pervasive.  Although it is an uphill battle - they must be stopped.

Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary (and working with allied groups, nationwide), informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts.  We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.

However, we can’t do it alone –  we need your continued support; via your comments (Sound Off!) and, yes, your contributions.  Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Ultimately, though – it’s worth the effort.

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