Originally published in the Milwaukee Journal Sentinel.
Lawmakers in Madison are considering a bill that threatens to weaken the important role of the judiciary in protecting the public from unconstitutional acts by the government. The bill — 2013 Assembly Bill 161 — was approved May 8 on a party-line vote by the Government Operations Committee. It would limit the ability of trial judges to block unconstitutional state laws, putting citizens at risk of irreparable harm from constitutional violations.
In Wisconsin, as in most other states, trial judges possess the authority to block laws that violate the state constitution. Rarely issued, these injunctions are a last-ditch resort to protect the status quo when there is no alternative legal remedy and when there is a showing that the injunction is required to prevent irreparable harm.
The bill eviscerates this important protection against constitutional violations, effectively allowing a lawyer to block a trial judge's order enjoining a state law merely by filing an appeal within 10 days. The injunction then would be blocked until a higher court has intervened or until the litigation has been definitively resolved.
This undermines the very purpose that injunctions serve, in preventing the irreparable harm that is likely if the government is allowed to violate citizens' constitutional rights until all litigation and appeals have concluded.
A fair and independent judiciary is a cornerstone of our democratic system, and we should be extremely skeptical of efforts by the legislative and executive branches to intrude upon the powers bestowed on the courts. Not surprisingly, the Wisconsin Legislative Council, the Legislature's independent nonpartisan legal research service, has concluded that the proposed law may very well violate the Wisconsin Constitution by impermissibly infringing on the independence of the judiciary. At the very least, the legislation raises serious constitutional concerns.
While proponents claim they are only attempting to speed up the legal process, the timing of the bill also raises questions. Over the past few years, lower courts reviewed a number of controversial laws that were blocked as unconstitutional. It is understandable that legislators may be frustrated when laws they pass are subsequently found to offend the constitution. But in our democracy, it is emphatically the role of the courts to protect the people from unconstitutional actions by the executive and legislative branches. The proper response by the Legislature is to craft legislation that comports with the constitution, not to undermine the judicial branch.
The Legislature should not pass this bill. If it does, the governor should veto it. The judiciary must be able to deliver unbiased and impartial justice without fear of political retaliation.
Matthew Menendez is counsel at the Brennan Center for Justice at New York University School of Law. Andrea Kaminski is executive director of the League of Women Voters of WI Education Network.