Ending most collective bargaining rights for most public employees.

Requiring photo identification to vote.

Hunting wolves.

Over the past two years, these signature laws passed by Wisconsin’s Republican-run Legislature hit speed bumps if not outright roadblocks when judges in Democratic-leaning Dane County issued orders halting their implementation.

Frustrated by what they see as liberal judges out to thwart their agenda, GOP lawmakers are proposing an end-run around lower court judges who try to stop state laws from taking effect.

“There have been a few high-profile laws ... that are obviously constitutional (that) were held up by Dane County Circuit Court judges, and we felt they were doing it for political reasons,” co-sponsor Sen. Glenn Grothman, R-West Bend, told members of the Senate Committee on Judiciary and Labor, which he chairs.

“That a new law can be put on hold by an activist judge that may represent less than one-half of one percent of the state’s population is offensive.”

But the Legislature’s own nonpartisan legal agency is warning that the proposed law itself may be unconstitutional. And there are signs Republican leaders are rethinking whether to push forward.

Alyssa Moyer, a spokeswoman for Senate Majority Leader Scott Fitzgerald, R-Juneau, said the measure is unlikely to be taken up by the Senate before the Legislature approves the budget and leaves for summer break.

And although the Assembly gave the proposal tentative approval on a party-line vote last month, Kit Beyer, a spokeswoman for Assembly Speaker Robin Vos, R-Rochester, said there’s no guarantee it will get a final OK any time soon.

Marquette University Law Professor Peter Rofes said he’s not surprised lawmakers appear to have hit the pause button.

Rofes said the proposal is a “knife that cuts both ways,” a tool that could just as easily be used by Democrats to push their agenda if they regain control of the Legislature and the governor’s office.

In addition, Rofes said appeals judges, including the current Supreme Court, are unlikely to look favorably on a law that could be seen as usurping their authority.

“I think there are very good reasons — reasons rooted in politics and reasons rooted in constitutional law — to be cautious about this,” he said.

Under companion bills sponsored by Grothman and Rep. David Craig, R-Big Bend, any time an appeals court or circuit court judge issued an order blocking implementation of a state law, that order would immediately be suspended if the matter were appealed to a higher court within 10 days.

However, the higher court could reimpose the judge’s earlier order if it chose, under the companion measures, Assembly Bill 161 and Senate Bill 154.

Goal: Don’t let judge
dictate state laws

Craig said in a statement that the goal was to “ensure that one judge cannot unilaterally prevent the implementation of state law without the possibility of an expedited review by a higher court.”

The measure passed Grothman’s committee on a party-line 7-4 vote last month, with committee member and attorney Sen. Fred Risser, D-Madison, warning the proposal would remove a safeguard against enactment of laws that are “confusing” or that violate the state Constitution.

Critics say it also would give any attorney defending a law the power to single-handedly overturn a judge’s order — at least temporarily — by filing an appeal.

Bill praised, criticized

It’s not just Democrats who are raising questions about the proposal.

The nonpartisan Legislative Council, responding to a request from Rep. Christine Sinicki, D-Milwaukee, said such a law may be unconstitutional under the so-called separation of powers doctrine that holds that judicial, executive and legislative branches have powers that cannot be usurped by the other.

According to a May 1 memo from the Legislative Council, the state Supreme Court has held that each branch has some “core” powers that cannot be exercised by another branch. In addition, there are “shared” powers in which “one branch of government may not unduly burden or substantially interfere with another branch,” Legislative Council attorneys Anne Sappenfield and Anna Henning wrote.

The provision that would likely spark a legal challenge, they said, is the one requiring an automatic halt to a judge’s restraining order or injunction once an appeal to such an order is filed.

“If the court views the power to stay a court order as exclusively within the power of the judicial branch,” the attorneys wrote, “the court may rule the provision unconstitutional.”

Attorney Lester Pines, who has filed successful challenges to several GOP-passed laws, told Grothman’s committee the measure is “an infringement on judicial independence, it violates the separation of powers.”

Andrea Kaminski of the League of Women Voters, which filed one of the two challenges to the voter ID law in Dane County, agreed.

“If a judge can’t block a law that he or she has judged unconstitutional,” Kaminski told the committee, “then there’s no balance of power in government.”

James Buchen, representing Wisconsin Manufacturers and Commerce, the state’s largest business group, testified that the proposal would serve as a check against judges who disagree with the legislative majority based on the political climate of the county or region where they serve or their own views.

“At the end of the day, they (judges) are elected officials, too,” Buchen said. “As a result, I think judges from time to time do feel either compelled by public pressure or public opinion or they themselves hold the views of the vast majority of their constituents.”

Despite uncertainty over when the Assembly might take up a final vote, Vos has said the proposal “brings balance to the separation of powers and doesn’t stop the court from being able to do its duties.

“Rather it expedites due process — for both political parties — so that there can be certainty for people impacted by laws.”

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