On Thursday, the Wisconsin Supreme Court issued a 5-2 decision dissolving the contempt order by a lower court judge on the Walker Administration's enforcement of the anti-union Act 10 law.
Read the decision here (PDF).
Chief Justice Shirley Abrahamson and Justice Ann Walsh Bradley wrote in a blistering 26-page dissent that the majority opinion was rife with "numerous legal errors" that "demonstrate a disregard for the law and muddy the waters of our jurisprudence."
"Perhaps the most troubling aspect of today's decision," the dissent continued, "is that the court inflates its own power while disrespecting the authority of the circuit court and the court of appeals, as well as the judicial process."
The Court's rightwing majority "has seen fit to reach its outcome through whatever means necessary," the dissent found, "ignoring well-established precedent."
So results-oriented and so transparently captive to the same corporate sponsors that backed Act 10 (and spent heavily to put the Court's conservative majority on the bench) was the Supreme Court that it lost all sight of its role in protecting the integrity of the judiciary.
The basic facts were these:
Dane County Circuit Court Judge Juan Colas had found the state in contempt after it ignored his decision that parts of Act 10 were unconstitutional. Specifically, Colas warned the state that it could not legally require unions to hold annual recertification elections. The state went ahead and prepared for those elections anyway.
After spending millions of dollars and investing time and effort preparing for elections for municipal workers across the state, the Wisconsin Employment Relations Commission (WERC) stopped those preparations temporarily, while it waited for the Court to rule.
The Court's 5-2 ruling found that because the case was under appeal, Colas did not have the authority to issue a contempt order.
But the Supreme Court ruling is "confusing," says Lester Pines, attorney for Madison Teachers, Inc, a plaintiff in the case.
The Court declined to issue a stay of Colas's original order. So the decision that holds the union elections unconstitutional remains in effect.
Nor did the Court attempt to change the longstanding legal understanding that no "facially unconstitutional" statute may be enforced.
"The question is, what will the WERC do now?" said Pines. "Will they follow the law or violate the law?"
If the state rolls ahead with unconstitutional elections, as a WERC spokesman said it plans to do, "Is there any court now that will say you have to stop violating the law?" Pines asked.
Like the Wisconsin Assembly, which recently spent its final day in session speedily passing laws to push through voter ID, cut back hours that the polls are open, reduce absentee balloting, curtail municipal authorities' ability to manage elections, and the citizens's right to recall their elected officials -- and, not coincidentally, get rid of the seniority rule that allows a liberal justice to preside over the Wisconsin Supreme Court as Chief Justice -- the Court decision is an effort to seize power, at the expense of democracy and the rule of law.
The ruling "attempts to transform the rule of law into an untenable rule of defiance," Abrahamson and Bradley wrote. It tells "government officials who are defendants in a case [that they] need not obey a court's declaratory judgment..."
WERC lawyer Peter Davis told the Wisconsin State Journal that "he anticipates that WERC will begin elections, because there's enough time to begin them on or before December 1."
But as Justices Abrahamson and Bradley pointed out in their dissent, there will be serious legal problems if elections go forward.
Unions that lose elections deemed unconstitutional can go to court to claim the results cannot be enforced. There could be a rash of lawsuits across the state. Nor did the Supreme Court overturn its longstanding finding that a law deemed facially unconstitutional cannot be applied to anyone in the state.
"This is why complex issues should not be taken up by the Supreme Court on an accelerated timetable," said Pines. "It leads to many unintended consequences."
That's putting it mildly.
The Court's decision is clearly part of a power-grab.
As Abrahamson and Bradley wrote in their dissent, the decision "discards the longstanding law of this state. First, it authorizes the executive to disobey the declaratory judgments of the judiciary. Second, it strips circuit courts of the ability to protect those judgements. Third, it ignores our prior restraint."
In other words, if the conservative majority on the court doesn't like a lower-court judge's decision, it gives itself the authority to reach down and undo that decision.
That overreach, and the way it fits with the anti-democratic thrust of Wisconsin's rightwing machine, is what citizens should worry about.
Photo: Flickr user Chris Potter, creative commons licensed.