Thursday, March 31, 2011

State Defiance of Court Orders In Wisconsin

Over the last few days in Wisconsin a bit of a legal crisis emerged as Wisconsin Governor Scott Walker's administration, in its attempt to implement an anti-collective-bargaining law, fell afoul of a court order.

What happened is as follows: the Republicans in Wisconsin's state government used some parliamentary maneuvers to pass laws restricting collective bargaining and other laws which would more tightly restrict the ability of labour unions to operate - including the ending of mandatory deduction of union dues.

Wisconsin Democrats responded by challenging the passing of the law itself, claiming that the law was processed incorrectly. Wisconsin county judge Maryann Sumi issued a restraining order preventing the state from implementing the law while she considered the case.

However, the State went ahead and began implementing the law regardless, halting the collection of union dues through salary deductions.

The State's argument was that although the act had not yet been published in the Wisconsin State Journal, which is the State's official newspaper for the purpose of publishing new laws, it had published the Act through the Legislative Reference Bureau and that therefore, since the law was published that way, it was in effect.

(The chief of the LRB went on record saying that he does not believe his agency's action implements the law.)

Judge Sumi was not amused.
"Further implementation of the act is enjoined," said Dane County Judge Maryann Sumi.

She noted her original restraining order issued earlier this month was clear in saying that the state should not proceed with implementing the law. The Walker administration did so after the bill was published Friday by a state agency not included in Sumi's earlier temporary restraining order.

"Apparently that language was either misunderstood or ignored, but what I said was the further implementation of Act 10 was enjoined. That is what I now want to make crystal clear," she said.
Judge Sumi's reaction - and a energetic reaction from the media - led the Wisconsin administration to announce its intention to abide by the judge's order.

This puts the issue to rest, at least temporarily, but it doesn't address the interesting question of whether blatant disregard for a judicial order - had it continued - would have caused the state's Attorney General and other lawyers under him to be in violation of Wisconsin's Rules of Professional Conduct for Attorneys, which state that a lawyer in Wisconsin has the duty to "uphold legal process."

Some might argue not - after all, there is a long tradition in the United States of elected officials defying the judiciary, all the way back to President Andrew Jackson defying the U.S. Supreme Court's decision in Worcester v. Georgia, which of course led to the Trail of Tears. (One would both expect and hope that the consequences of what is happening in Wisconsin will of course be less dire.)

On the other hand, it's very hard to characterize what the State government did as anything other than blatant, if temporary, defiance of the court order, which would seem to be the antithesis of upholding the legal process. And then again, one could counter-argue that since the law only required the state to not do something, and therefore not imposing a positive duty, that by not collecting union dues they were not necessarily implementing the old law but instead merely failing to uphold the state's previously existing obligations. (This seems like a legalistic excuse to this writer, particularly in light of various state officials and lawyers saying that they were implementing the law.)

In any case, calmer heads have prevailed and it appears Wisconsin will now abide by the court order.

- Christopher Bird, Toronto
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