Tuesday, August 30, 2011

What Started the Argument - A Correction

One of the talking points on left-leaning blogs is to cluck about the fact that the disagreement that lead to the confrontation on the state Supreme Court was about when the Court's decision would be issued. It is, they say, somehow indicative of a lack of judicial independence that the majority wanted the decision out quickly because the state wanted it out quickly as revealed by, in addition to submissions to the Court (which the critics ignore), public statements by certain legislators. They cite statements by the dissenting Justices that the Court operates on "court time" and not "legislative time."

The critics are wrong.

It is not at all unusual - in fact it is admirable - for a Court to recognize that a matter before it is time sensitive, i.e., that asserted rights will be lost if a decision is not issued by a certain date or before a certain event. That was the case in Ozanne. If it was not decided by sometime in mid-June, the claim that the circuit court had interfered with the constitutional prerogatives of the legislature would have been mooted. Because of the looming deadline for passage of a new budget, the legislature would have had to take up the collective bargaining reforms for a second time. But the claim in Ozanne was that the reforms had been properly passed and that it was a violation of separation of powers for the circuit court to declare them to be invalid and enjoin their enforcement. In other words, the case had a shelf life.

There is nothing wrong with a court recognizing this and attempting to act promptly so that the rights of the parties will not be lost by the mere passage of time.

7 comments:

gnarlytrombone said...

in addition to submissions to the Court (which the critics ignore), public statements by certain legislators

You obviously haven't listened to the Prosser interrogation. Here's how he lays it out:

- Roggensack circulates a draft order "by Friday" the 10th. In conference, the justices agree to release an order on the 13th.

- Prosser believes the reasoning needs to be fleshed out and decides to write a concurrence, which he does over the weekend. He claims to have sent an e-mail - which the libruls deny - and anyway "anyone with a brain" should have known he was doing it.

- On the 13th, Abrahamson claims to have been blindsided by the Prosser concurrence and says the minority needs more time to respond. She refuses to sign off on a press release announcing the decision the next day and says the dissent may not be ready until the 15th.

- "Completely separately" from the discussion and agreement on when to release a decision, Jeff Fitzgerald announces the vote will be held on the 14th. This, Prosser says, "puts the court in an awkward position."

Anonymous said...

It's more important for a Court to weigh in on an important issue even if it causes a fight among the Justices...it's better that they fight and not the people in the street.

Anonymous said...

The Abrahamson court has been a disgrace.

John Foust said...

Clearly this problem could be avoided by folding the Supreme Court under and into whichever remaining branch of government is controlled by the Fitz Bros. and the WisGOP.

Anonymous said...

What does this say about Wisconsin's legal community if these are the best and brightest representatives that can be found to serve on the court?

Anonymous said...

Hardly. Wisconsin Supreme Court justices, other than the chief, who makes slightly more, make $144,495 a year. Starting associates in Foley & Lardner's Chicago office make $160,000 a year. Who would put up with the character assassination candidates for the Wisconsin Supreme Court have to put up with, to make less than a starting associate at Wisconsin's largest law firm? No wonder the membership of the court is what it is today. Making service on the Wisconsin Supreme Court appointive rather than elective would be a good idea. Either that, or pay them more -- or both.

Bryanyvhb said...

Clearly this problem could be avoided by folding the Supreme Court under and into whichever remaining branch of government is controlled by the Fitz Bros. and the WisGOP.