Dan O’Donnell weighs the ramifications of the Supreme Court’s new liberal majority ignoring precedent and possibly the state’s open meetings law to fire Wisconsin’s Director of State Courts

 

August 2, 2023
Perspective by Dan O’Donnell

 

Even before Wisconsin Supreme Court Justice Janet Protasiewicz was sworn in Tuesday, the Court’s new liberal majority was already ignoring precedent to arrive at a predetermined outcome.

Who could have possibly seen that one coming?

On Monday afternoon, Justice Jill Karofsky, one of the Court’s four liberals, called Director of State Courts Randy Koschnick to inform him in no uncertain terms that there were now enough votes to fire him and that he should expect his termination letter immediately after Protasiewicz’s investiture ceremony.

“It’s unprecedented how they’re taking a wrecking ball to a great justice system,” Koshnick said Tuesday morning.  “The Supreme Court normally schedules conferences and hearings for these types of decisions.  All seven justices operate as ‘the Court.’  There is no such hearing scheduled today.  There is no record of any such vote being taken.  The three conservative justices didn’t even know that this was even going to be considered until I got the call from Justice Karofsky.”

“Four or five justices secretly voting on court matters without the court actually meeting breaches universal judicial norms.  This abuse of power is unprecedented and illegitimate.  It should be condemned by all judges.”

Conservative Justice Rebecca Bradley said she was shocked by the move, which she immediately condemned.

“Political purges of court employees are beyond the pale,” she tweeted after learning what her colleagues were up to.  “Four or five justices secretly voting on court matters without the court actually meeting breaches universal judicial norms.  This abuse of power is unprecedented and illegitimate.  It should be condemned by all judges.”

It may not just be illegitimate; it may also constitute an illegal walking quorum.  Wisconsin law designates the minimum number of members of a government body who must be present for that body to make decisions on governmental matters.  A walking quorum “is a series of gatherings among separate groups of members of a governmental body, each less than quorum size, who agree, tacitly or explicitly, to act uniformly in sufficient number to reach a quorum.”

The Wisconsin Supreme Court ruled in 1987 that a governmental body such as a city council or village board “can violate the open meeting law by communicating regarding city or village business if there is communication amongst a sufficient number of the members” in the form of a walking quorum.

Does that ruling apply to the Supreme Court itself?  Could the Supreme Court—the ultimate arbiter of what constitutes a violation of the open meetings law—itself have violated the open meetings law?  It’s a fascinating (and rather terrifying) question, primarily because until this very moment it never had to be asked.

Never before has a Supreme Court acted so brazenly, vindictively (Koschnick is a conservative who unsuccessfully challenged the late liberal Chief Justice Shirley Abrahamson in 2009), or so quickly to assert its power, legality be damned.

If the open meetings law’s prohibition against walking quorums does indeed apply to Supreme Court justices, then the three liberals who met in secret to decide public business with a fourth liberal who wasn’t even on the Court yet are in obvious violation of the open meetings law.

This isn’t exactly the way to reassure Wisconsinites that this will be a Court that respects the Rule of Law and will not put its collective thumbs on the scale of justice to achieve preferred and predetermined outcomes.

Could the Supreme Court—the ultimate arbiter of what constitutes a violation of the open meetings law—itself have violated the open meetings law?  It’s a fascinating (and rather terrifying) question.

It also isn’t exactly surprising after the campaign liberals ran to gain their majority.  Protasiewicz was elected earlier this year largely on the strength of her repeated promises to put aside statutes, case law, and even common sense to arrive at decisions that are instead based on her nakedly partisan “values.”

“What I would tell you is that [on] the bulk of issues, the myriad number of issues, there’s no thumb on the scale,” she notoriously promised during the campaign, “but I will also tell you that I’ll call them as I see them and I’ll tell you what my values are in regard to this particular issue because this issue is so critically important.”

On the most important issues, you see—abortion, electoral maps, who the Director of State Courts is—Protasiewicz’s values (and those, it would seem, of her fellow liberal justices) reign supreme. They’re just too doggone important, in fact, to let silly things like law and precedent get in the way of what the justices feel in their hearts is the right thing to do.

Protasiewicz didn’t even have to be sworn in for those justices to reveal themselves to be little more than petty tyrants just itching to remake Wisconsin to better align with their values or, more accurately, personal preferences.

Don’t call this a tyranny of the judiciary; that would presume that these would-be autocrats are actual jurists.  This is a tyranny of want.  They will do what they want when they want because they can.

Got a problem with that?  File a lawsuit and take it all the way to the Supreme Court.  Oh wait….