The real nuggets are in the dissent in this case. The dissenting judges say more about the case specifics than I could possibly say as a part-time blogger. But I will say this, to those of you who oppose the right of teachers to get together and talk about their classroom conditions: You won a case tonight through a hasty, poorly thought-out decision. This decision denies the right of the judicial branch to review legislative process. It says that the legislature is not bound by any rules. According to the dissent, the majority's decision undermines years of precedent, going back to the 1890s. It wildly misrepresents previous cases. Supporting this decision undermines a system of checks and balances that we consider a hallmark of our society, and it makes a farce of our judicial system.
Here's a snippet of the dissent:
¶119 First, the order misrepresents Milwaukee Journal Sentinel v. Wisconsin Department of Administration, 2009 WI 79, 319 Wis. 2d 439, 768 N.W.2d 700, as not involving the legislature's compliance with a statute. In the Milwaukee Journal Sentinel case, the court declared that it had jurisdiction to determine whether the legislature complied with Wis. Stat. § 111.92(1)(a), a statute governing legislative procedure, because that statute furthered the constitutional directives found in Article IV, Section 17(2) of the Wisconsin Constitution.
¶120 Second, the order fails to acknowledge that the Milwaukee Journal Sentinel case explained that a court will interpret and apply a procedural statute to determine whether the legislative action complies "with constitutional directives":
[W]e need not decide whether Wis. Stat. § 111.92(1)(a) is a rule of legislative proceeding because a statute's terms must be interpreted to comply with constitutional directives. Accordingly, even if the statute might otherwise be characterized as a legislative rule of proceeding, we may interpret the statute and apply it to the legislative action to determine whether that action complies with the relevant constitutional mandates. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803); [State ex rel. La Follette v.] Stitt, 114 Wis. 2d [358, at] 367, [338 N.W.2d 684 (1983)]; McDonald v. State, 80 Wis. 407, 411-12, 50 N.W. 185 (1891).
Therefore, because both Wis. Stat. § 111.92(1)(a) and Article IV, Section 17(2) require the legislature to take additional actions to amend existing law or to create new law, and we have jurisdiction to interpret the Wisconsin Constitution and the Wisconsin Statutes, we have the authority to evaluate legislative compliance with § 111.92(1)(a). Stitt, 114 Wis. 2d at 367, 338 N.W.2d 684. Accordingly, we reject WSEU's argument in this respect, and proceed to determine whether the legislature complied with § 111.92(1)(a) in light of the Wisconsin Constitution.
Milwaukee Journal Sentinel, 319 Wis. 2d 439, ¶¶19, 20 (footnote omitted).
¶121 Justice Prosser fails to mention the case.
¶122 The Milwaukee Journal Sentinel case was based on at least three earlier cases, all concluding that a court may require the legislature to comply with a legislative procedural rule or statute if the procedural rule or statute furthers a constitutional directive.[13]
¶123 The order and Justice Prosser's concurrence put in jeopardy Milwaukee Journal Sentinel and prior case law that declares that a court may determine whether legislative action in enactment of a law complies with a relevant constitutional directive.
¶124 Milwaukee Journal Sentinel (and its precursors) correctly state the applicable principles of judicial review, the doctrine of separation of powers, and the functions of the legislature and judiciary.
In our haste, we overlooked years of precedent, in order for us to do...what? Make sure Wisconsin is "open for business?" How many more of our laws will we throw to the side, through legislative or judicial fiat, in order for us to become "open for business?" If previous history, constitutional requirements, and judicial review no longer apply, why do we even bother going to the polls? If our legislators fail to respond to us, fail to live up to their own rules, and disregard any dissenting information as "union thuggery," why even bother with the political process? Why don't we just sign away the deeds to our property now, and let Exxon, GE, and Koch industries take over the place. Maybe they'll give us nice jobs and allow us to stay on their land for awhile.
I want to find a way out of this madness. I'd like to say that winning the recall elections this summer is important. It is. I'd love for that to be the end of everything - just one more election, and we're home free. But tonight I realize that this is not the case. It's so far from being the case, that I must say, I'm a bit overwhelmed. We can't win the recall elections and then sit on our hands in 2012. We need to recall our governor. We need to recall the rest of our state senators. We need to go beyond that, though. We need to organize, and we need to do it on a level that hasn't been done in decades. I'm tired just thinking about it. We need to develop platforms every bit as coherent as ALEC and the Heritage Foundation. Every elected position, from alderman to the White House, needs to be seriously scrutinized by US. We simply cannot let politicians continue to slip past into what is apparently now unchecked power. Even in tough districts, we need to fight and win, year after year.
I want so badly to have a metaphor tonight that captures what I feel. But sometimes a metaphor distracts from the real situation. Tonight it's plain to me that the people are not in power here. There are a handful of rich people calling the shots. A staggering percentage of the electorate in our state want to give this handful of rich people control over our schools, highways, parks, and everything else, on the blind faith that their stockholders will manage it better than we can. Right now Governor Walker has an 87% approval rating among Republicans in Wisconsin. He's not unpopular.
Thankfully, the beauty of our system is in our continual progress as a nation. The beauty of human nature is our continuing progress as a species. We can dig our way out of problems. We can organize when we need to organize. We can win victories over the powerful. In fact, what we fail to realize is that they are scaling back the victories we've already won. And though Governor Walker may be popular, remember that even the most successful actions on behalf of organized labor have been notoriously unpopular, despite the benefit they provide.
So how did we win these battles? Was it easy? Did every fight result in a victory? Certainly not. Our grandfathers and grandmothers were beaten, harassed, blacklisted, and put out on the street for the battles on behalf of working men and women. And they still won. We WILL prevail. Small losses like tonight are fuel for our fire. This court decision lays bare their absolute derision of our system of governance. They don't want a check on their power. They want absolute authority. They don't want anyone to stand in their way, even if it means undermining the democracy our grandfathers died to protect. Cheering this victory is cheering the downfall of everything that makes this nation great.
Thankfully we are now together. This spring has energized me and hundreds of thousands of others in Wisconsin. I love seeing our brothers and sisters stepping forward to work for a better future. I think of Tony Schultz and his passion on behalf of farmers in this state. I think of Virginia Welle and her passion for educating students. I think of the unnamed snowplow driver I met in Madison who worked double shifts in the winter to clear our streets. We're ordinary people; unpaid shills working toward the common cause of a better middle class for Wisconsin. We work against billion dollar industries that see our solidarity as a cost to be eliminated.
Our ranks will grow as they continue to disaffect the others in our midst. We will fight together. We will provide others with an outlet for their frustrations. We will put leaders forward that listen to us. We will win hearts and minds first, and elections will follow. I hope you're with me this summer. It's going to be a battle. But it's also going to be great fun, standing shoulder to shoulder with our brothers and sisters as we take our state back. Tonight, more than ever, we need to stand together and sing. Wisconsin will be ours!
