The Wisconsin Legislature is one of the most regressive legislatures in state history. The Republican-controlled Legislature has enacted restrictive and suppressive voter identification laws, transformed Wisconsin’s limited school voucher program into a statewide program and made tax cuts that favor the wealthiest individuals in Wisconsin, among other things.
However, Wisconsin’s Legislature has not always been so regressive. Wisconsin was the first state in the nation to enact a (constitutional) workers’ compensation regulatory program and unemployment insurance. Both of these accomplishments emerged from this state’s proud progressive tradition — a tradition embodied in the ideals of Robert “Fighting Bob” La Follette, Sr.
In contrast to these progressive laws, the current Wisconsin Legislature has enacted a voter identification law in a thinly-veiled attempt to suppress voter turnout, an abortion law concerning “admitting privileges” requirements, which places an undue burden on a woman’s right to have access to an abortion, tax cuts for the wealthiest individuals in Wisconsin and a school voucher law that transforms Wisconsin’s geographically limited school voucher program into a statewide one.
Many of the Republican-controlled Legislature’s enacted laws have been challenged in state and federal courts. While the constitutionality of some of these laws have eventually been upheld by state appellate courts, Republicans in the state Legislature can’t stand the fact that the state was temporality enjoined from enforcing these laws when lower courts ruled that they were unconstitutional. To remedy an asserted (and nonexistent) problem with state courts granting preliminary injunctions, Rep. David Craig, R-West Bend, has authored a bill that would allow a party that is enjoined from enforcing a state law to appeal to a state appellate court within 10 days and be granted an automatic stay.
This would turn the concept of a preliminary injunction upside down. Some main reasons for a court to grant a preliminary injunction to a party are that the party (1) is likely to be successful on the merits of the legal claim and (2) will suffer irreparable harm if the injunction is not granted. When a state court grants a preliminary injunction, nothing prevents the losing party from seeking a discretionary stay (separate from an ordinary appeal) from a state appellate court. The simple fact is that the granting of a stay is discretionary, not mandatory.
Nonetheless, Craig’s proposal would take away a state appellate court’s discretion in granting a stay to a preliminary injunction and instead would mandate that the court do so if a party appeals a preliminary injunction within 10 days. Not only does Craig’s proposal make no sense in the legal context of preliminary injunctions, it raises serious separation of powers concerns. But the Republican-controlled Legislature is trying to do more than just restrict the ability of state courts to enjoin the enforcement of state laws; it is trying to give the Wisconsin Supreme Court the tools to remove Chief Justice Shirley Abrahamson from her position.
A proposal that the Senate passed would allow members of the Wisconsin Supreme Court to choose its chief justice if passed in two consecutive years by the Legislature and approved by Wisconsin voters. This proposal would change the more than a century old tradition of awarding this position through seniority (Wisconsin is one of only five states left that do so). Although the Legislature’s proposal is written in neutral terms, it is a transparent attempt to remove Shirley Abrahamson from her position as Chief Justice. As a Milwaukee Journal Sentinel editorial stated, “It’s aimed at removing Shirley Abrahamson, seen as a leading liberal, from the position she has held for 17 years. You can count on the conservative majority voting for one of their own.”
Not content with enacting regressive legislation regarding voter identification and school vouchers, the Legislature has decided to try and interfere with the institutional integrity of state courts with its anti-injunction bill and the integrity of the Wisconsin Supreme Court with its proposal changing how the Chief Justice is selected. I urge the Legislature to respect the institutional integrity of our state courts and oppose both of these legislative proposals.
Aaron Loudenslager ([email protected]) is a second year law student.
