Dan O’Donnell uses the Wisconsin Supreme Court’s extraordinary session decision to explain the dangers of judicial activism and the importance of judicial elections
June 26, 2019
Special Guest Perspective by Dan O’Donnell
“Ignorantia juris non excusat”—Latin for “Ignorance of the law excuses not”—is quite literally one of the oldest axioms in jurisprudence.
In its simplest form, “Officer, I swear I didn’t know that was against the law” is never a valid defense against an illegal act. The act is illegal whether the actor knows it or not. Ignorance of the law is not an excuse.
One can understand why criminal suspects still try to mount this defense, but it almost defies belief that three justices on Wisconsin’s highest court would base their dissent of a high-profile on what at first glance appears to be their own ignorance.
Niess’s belief that the judiciary can intervene when it doesn’t like how one of the other branches of government sets its own schedule is simultaneously laughable and terrifying. That three Wisconsin Supreme Court justices agreed with it is downright chilling.
Of course, the Wisconsin Supreme Court’s liberal bloc—Justices Shirley Abrahamson, Ann Walsh Bradley, and Rebecca Dallet—aren’t at all ignorant of the law, which makes Dallet’s dissent in League of Women Voters v. Evers even more insidious. It isn’t ignorant of the law; it merely pretends a law doesn’t exist and, in so doing, reveals the extent to which the Court would devolve into unrestrained judicial activism should liberals ever regain control of it.
League of Women Voters, a challenge to the laws the Wisconsin Legislature passed in extraordinary session last December, should have been dismissed the moment it came before Dane County Circuit Court Judge Richard Niess. Naturally, Niess—very possibly an actual physical manifestation of liberal judicial activism—issued an injunction against the laws based on little more than his personal disdain for them.
Niess was hardly alone in this scorn. The laws, which limited the power of incoming Governor Tony Evers and Attorney General Josh Kaul, became a source of national liberal outrage as the national media portrayed them as nothing more than a bitter Republican Legislature getting back at the Democrat who beat Scott Walker.
Niess wasn’t about to let that happen, so he blocked the laws from taking effect based on the simultaneously laughable and terrifying belief that the judiciary can intervene when it doesn’t like how one of the other branches of government sets its own schedule.
This presupposes that one of the co-equal branches isn’t co-equal at all and that the judiciary can in fact supersede the legislative and executive in the administration of their duties. That this wholly ignores the Wisconsin Constitution, governing statutory law, and the relevant facts of the case is rather shocking.
That three Wisconsin Supreme Court justices agreed with it is downright chilling.
In her dissent, Dallet determined that “the Legislature unconstitutionally met in an ‘extraordinary session’” in December because “there was no authority for” legislative leaders to “convene a previously unscheduled meeting of the full Legislature.”
Only they did. Dallet and the two other liberal justices merely pretend that they didn’t.
Article IV, Section 11 of the Wisconsin Constitution holds that “the legislature shall meet at the seat of government at such time as shall be provided by law, unless convened by the governor in special session, and when so convened no business shall be transacted except as shall be necessary to accomplish the special purposes for which it was convened.”
Pursuant to this, Wisconsin Statute §13.02 provides that “the legislature may meet annually,” beginning each “regular session…at 2 p.m. on the first Tuesday after the 8th day of January in each year unless otherwise provided” by the joint committee on legislative organization.
“[E]arly in each biennial session period,” that committee must “meet and develop a work schedule for the legislative session, which shall include at least one meeting in January of each year, to be submitted to the legislature as a joint resolution.”
And the Senate and Assembly Committees on Organization did. In a joint resolution, they set the legislative session as lasting from January 3, 2017 to January 7, 2019. In that resolution, the committee wrote that “every day of the biennial session period is designated as a day for committee activity and is available to extend a scheduled floor period, convene an extraordinary session, or take senate action on appointments.”
The Legislature had its organizing committees hold open every day between January 3, 2017 and January 7, 2019 for a possible extraordinary session. Since December of 2018 occurred between these two dates, an extraordinary session that took place in that month is perfectly lawful.
Dallet ignores this altogether, writing that “March 22, 2018 was the final date the Legislature met pursuant to the work schedule and, as was the practice at the end of each legislative session, bills that were not passed in identical fashion by both houses expired.”
Only they didn’t. The Legislature, which is authorized by Article IV, Section 11 to set its own schedule so long as it complies with the law, followed Statute §13.02 and had its organizing committees hold open every day between January 3, 2017 and January 7, 2019 for a possible extraordinary session. Since December of 2018 occurred between these two dates, an extraordinary session that took place in that month is perfectly lawful.
Dallet, though, refused to accept this in her dissent, and instead ridiculously argued that “the plain constitutional text of Article IV, Section 11 makes clear that with the exception of the Governor’s ability to call special sessions, the Legislature has authority to ‘meet’ only at ‘such time as shall be provided by law.’
“Yet, the majority opinion ignores this clear language and instead concludes that a joint resolution work schedule is ‘law’ that allows for a continuous, perpetual legislative session and the ability to convene at any time without notice.”
No, the joint resolution work schedule is allowed for by law (specifically Statute §13.02), and was thus perfectly constitutional. So commonplace are such extraordinary sessions that their legitimacy had never before even been challenged.
Dallet and her fellow liberals aren’t ignorant of this reality of state constitutional law (even if Niess very well could be), so why did they engage in such tortured logical gymnastics to arrive at the conclusion they did?
The answer is as simple as it is obvious: They wanted to arrive at the conclusion they did. In the clearest example of judicial activism in recent memory, they ignored the plain language of the Constitution and relevant state law as well as the facts of the case before them in order to arrive at their favored political result regardless of whether it is a defensible legal result.
When such shameless politicking from the bench threatens even basic functions of the other branches of government like setting legislative schedules, Wisconsin runs the very real risk of descending into a tyranny of the judiciary.
Fortunately, however, liberals will be in the minority for at least the next couple of years. Abrahamson will be replaced by Brian Hagedorn, who won a surprise victory over Lisa Neubauer in April and will give conservatives a 5-2 majority.
The Court’s decision in League of Women Voters—and the utterly ridiculous dissent that every liberal joined—should thus serve as a constant reminder of what is at stake in judicial elections.
Had he lost, liberals would have had a golden opportunity to regain control of the Court when conservative Justice Daniel Kelly stands for re-election on the same day as Wisconsin’s Democratic presidential primary.
The Court’s decision in League of Women Voters—and the utterly ridiculous dissent that every liberal joined—should thus serve as a constant reminder of what is at stake in judicial elections. Does Wisconsin want a judiciary that fairly interprets the Constitution and applies the law evenly or does it want a judiciary that will instead reach decisions based on nothing more than its own political preferences (even when those decisions are logically and legally indefensible?
Because of such potential for abuse, judicial elections—all of them—are this state’s most important and to ignore them is to run the risk of nothing less than a sort of autocracy.
Ignorance of this reality is no excuse.