Scott Walker and the Wisconsin GOP are fast-tracking proposed legislation that would curtail the power of circuit judges' orders issuing temporary injunctions [legal blocking] of unconstitutional laws.
This soon-to-be legislative act is a GOP power grab and an attack on the judiciary branch of government, specifically restricting the power of judges to protect citizens from unconstitutional infringements by the legislative and executive branches of state government.
The purpose of a temporary injunction is to maintain the status quo and prevent irreparable damage before the legal questions of a law are decided in a court of law.
The standard for issuing a temporary injunction includes the element that those asking for the blocking (temporary injunction) of a law have a high likelihood of success when the merits are weighed in a legal hearing. This is a high legal bar to reach.
The significance of the new Republican initative—now being circulated around the legislature as more Republicans sign on as co-sponsors with a deadline of April 15—is that unconstitutional laws may remain in effect for (possibly) long periods of time during which the Republicans, who now control the legislature and the governor's office and the Supreme Court, may use the cover of unconstitutional laws for corrupt, partisan purposes.
The proposed bill would radically change existing statuary law regarding the legal effect of judicial injunctions, restraining orders, or other orders suspending or restraining (halting through temporary injunctive relief) the enforcement of any state statute.
This soon-to-be bill turns the power of temporary injunctive relief on its head, and demands that so-called aggrieved parties of judges' orders against likely unconstitutional laws, be given new power in this proposed reworking of the judicial process that is (as usual in Wisconsin) supported solely by the Republican Party.
Voter ID Law-An Example
For example, consider Wisconsin's Voter ID Law singed into law in May 2011, some four months after Scott Walker assumed office
A request to temporarily stop (enjoin) Wisconsin's Voter ID law (passed solely with Republican support) was granted by Dane County Judge David Flanagan on March 6, 2012 in the case, Milwaukee Branch of the NAACP, et al v. Walker.
During the subsequent Voter ID trial held on April 16-April 19 and May 4, 2012, the Voter ID law was prevented by the March 6, 2012 injunction order of Judge Flanagan from being enforced because of the clear violation of the fundamental (and expansive) right to vote that Wisconsin citizens have under the Wisconsin Constitution.
After, and as a direct result of the April-May 1012 trial, Judge Flanagan issued a permanent injunction on July 17, 2012.
Between March 6, 2012 and July 17, 2012, there were three elections held in Wisconsin, on April 3, May 8, and June 5, 2012.
In the three elections combined, 100,000s of registered, constitutionally qualified Wisconsin voters would have been stopped from being able to vote—per the objective of the Republican Party of Wisconsin—had this newly proposed legislative act been in effect (assuming of course a Republican attorney had filed petition for review [review by an appellate-level court] within 10 days of the March 6, 2012, temporary injunction ordered by Judge Flanagan).
The proposed act by Republicans extends the time their unconstitutional laws are in force, inflicting as is Scott Walker's wont and history, damage onto political opponents and the rights of Wisconsin citizens, and advancing GOP objectives.
The Republicans claim they need this proposed act to reduce the "legal uncertainty" surrounding GOP laws that are being struck down as unconstitutional.
Following is a reproduction of the memo from Republican legislators seeking co-sponsors.
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TO: All Legislators
FROM: Rep. Dave Craig, Rep. Al Ott, Sen. Glen Grothman and Sen. Leah Vukmir
RE: Co-Sponsorship of LRB-0926/1: Relating to injunctions on state statute.
Date: April 10, 2013
Deadline for Co-Sponsorship: Monday, April 15 at 12pm
We are introducing LRB 0926/1 to address the legal uncertainty Wisconsin residents and businesses are subject to as a result of injunctions on state statutes, ordered by judges only elected by a fraction of our state’s population. Increasingly, questions have been raised as to a) whether individual circuit court judges’ rulings impact the state as a whole in regards to the implementation of state law; and b) whether a ruling from a judge - elected by a small portion of the state - should prevent the statewide implementation of legislation passed by the duly elected statewide legislature, and signed by our Governor, having also been elected statewide, without allowing for an expedited review by a higher court.
Under this bill, if a circuit court or court of appeals places an injunction, restraining order, or other order that, upon entry, suspends or restrains the implementation of any state statute, it would be immediately appealable to a higher court. If such an appeal is made to a higher court within 10 days of entry of the lower court’s order, the lower court’s order will be immediately stayed pending an order by a higher court or a final and unappealable order disposing of the entire case. Nothing in this legislation would prevent any court from entering an order that suspends or restrains the implementation of a state statute, or prevents a higher court from removing the stay should the higher court determine the lower courts order was reached appropriately.
This legislation would facilitate a fair and more efficient judicial system by ensuring that one judge cannot prevent the implementation of state law without an expedited review by a higher court. This legislation would also ensure that Wisconsin residents and businesses have a greater degree of certainty as to whether a law is or is not in effect during the disposition of a legal challenge. Lastly, this bill reaffirms that the three branches of our government remain separate, but equal.
If you are interested in co-sponsoring LRB 0926/1, please reply to this email by 12:00pm on Monday, April 15, 2013. Unless you request otherwise, you will be listed as a co-sponsor on both LRB 0926/1 and its Senate companion LRB-1131/1. Should you have any questions please feel free to contact Rep. Craig’s office (6-3363) or Sen. Grothman’s office (6-7513).
Analysis by the Legislative Reference Bureau
Generally, under current law, an interlocutory or final judgment issued by a court in an action for an injunction may not be stayed after the entry of the judgment or during the pendency of an appeal. This bill makes an injunction, restraining order, or other order that, upon entry, suspends or restrains the enforcement of any state statute (order) immediately appealable to an appellate court or to the Wisconsin Supreme Court. If a petition for interlocutory review is filed within ten days after the entry of the order, the order is stayed until one of the following occurs:
1. The appellate court or the Supreme Court grants the petition for interlocutory review and subsequently orders that the automatic stay be lifted.
2. The appellate court or the Supreme Court denies the petition for interlocutory review and simultaneously orders that the automatic stay be lifted.
3. Entry of a final and unappealable order disposing of the entire case.
The bill permits the appellate court or the Supreme Court to enter such orders as are necessary to the resolution of the petition.
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