Updated 9/21/2017 to reflect Gov. Walker's veto.
Updated 9/20/2017 to reflect adoption by the full Legislature.
By Gretchen Schuldt
Gov. Scott Walker vetoed a budget amendment that would have forced judges to determine what legislators were thinking when they adopted a legislation, even if the legislation did not reflect those thoughts.
Both the Assembly and the Senate approved a budget amendment that would have blocked municipalities from enforcing any ordinance that defeated the purpose of a state law or violated "the spirit” of the law. Judges, of course, would be the ones to referee disputes over the provision.
Walker saved them the trouble by axing it.
"I am vetoing this provision because I object to inserting a broad provision which may violate home rule under the Wisconsin Constitution for cities and villages," he said in his veto message. "The statutes already provide the ability to regulate matters of statewide concern that could affect political subdivisions."
The amendment spoke ill of the Legislature’s ability to do its job: “Oh, judges, if the law we adopted doesn’t prevent that city from taking that particular action that we don’t like, can you fix it for us from the bench?”
The amendment would, according to the Legislative Fiscal Bureau, "prohibit a political subdivision, defined as a county, city, village, or town, from enforcing an ordinance if any of the following applies: (a) a statutory provision expressly prohibits the political subdivision from enforcing the ordinance; (b) the ordinance logically conflicts with a statutory provision; (c) the ordinance defeats the purpose of a statutory provision; or (d) the ordinance violates the spirit of a statutory provision. ."
And whose interpretation of “spirit of the law” were judges supposed to accept? That of the sponsors of the original legislation? What if the interpretation was different between legislators? Was there going to be a survey of those who voted in favor of a bill to figure out what they thought the bill meant?
A lot of Wisconsin judges have said that they and their colleagues should not have the power to legislate from the bench.
Supreme Court Justice Rebecca Bradley, for example, said “Justices should apply the law as it is written, guided by principles such as judicial restraint and respect for the separation of powers among the three branches of government.” (Emphasis added)
And Justice Daniel Kelly, in his application for a Supreme Court seat, trotted out U.S. Supreme Court Chief Justice John Roberts’ comparison of a judge’s role to that of a baseball umpire who only calls balls and strikes.
"Changing the decisional standard after the act has already occurred is, by definition, antithetical to the rule of law,” Kelly wrote. “So, for example, it is unjust to change the strike zone after delivery of the pitch because it prevents the pitcher from knowing where to throw the ball."
He continued: “Post hoc adjustment of the strike zone is the essence of judicial activism. It usurps the legislature’s forward-looking function by reading into the past a new rule of decision. It causes the law to lose both its certainty and its predictive capacity. People are no longer able to plan their actions to comport with the law. They are at constant risk that today’s lawful behavior may be transformed into unlawful tomorrow should a judge exercise legislative, instead of judicial, authority.”
And it’s not just Supreme Court justices who eschew the kind of activism being pushed by Republican legislators.
Appeals Court Judge Timothy G. Dugan, appointed to his post by Walker, wrote in his application that “Courts do not have the authority to attempt to cure what judges perceive as social wrongs or problems that the legislature has chosen not to address. Those policy decisions rest in the hands of the legislature."
And Sauk County Circuit Judge Michael P. Screnock, running as a conservative for State Supreme Court, said in his Circuit Court judicial application to Walker, “It is important to our system of government that the judicial branch take care not to usurp the roles of the other two branches when called upon to interpret and apply the laws. Accordingly, I believe strongly that while it is the role of the judicial branch to say what the law is, as Chief Justice Marshall declared, it is not the province of the judiciary to decide cases on its view of what the law ought to be.”
The Legislature wanted the courts to divine legislative intent; fix legislative sloppiness; ascertain the size and shape of a particular law’s “spirit,” and then decide whether it was violated.
This amendment told courts to guess at the unspoken desires and intents of the Legislature, even though those may vary greatly among legislators.
It was a fatally flawed amendment, designed not to improve the administration of justice, but to remove from the Legislature the responsibility of legislating.
Gretchen Schuldt is executive director of the Wisconsin Justice Initiative.
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