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0653, 12 Apr 16

Dane Power

My column for the West Bend Daily News is online. Here you go:

It has become so routine that it seems normal, but it is not — a Dane County judge has once again issued a daft ruling deeming a newly passed law to be unconstitutional. In an era when Democrats have been frustrated at the ballot box and relegated to the minority in the Legislature, they have turned to the court system to try to thwart the will of the people as expressed through their elected representatives.

The pattern has become predictable. The Republican Legislature and Republican governor enact a law they support. The liberal Democrats, unable to prevail in the Legislature, sue on the grounds that the law is unconstitutional. As the seat of state government, the first step in the legal process is in the Dane County Circuit Courts, where virtually every judge is liberal and rules that the law is unconstitutional. Then, after a lot of time and money is spent appealing the ruling, the Dane County judge’s ruling is overruled and the law stands. It happened with Act 10. It happened with Voter ID. And now it is happening with right-to-work.

Wisconsin’s right-to-work law was passed earlier this year, making Wisconsin the nation’s 25th state to pass such a law. The concept of right-to-work is simple and rooted in our natural right to freely associate with whom we please, or not. Under the previous law, people were forced to pay dues to a union, a private organization, as a consequence of working in a unionized shop. The people had to pay those dues even if they did not support or agree with the union. Wisconsin’s right-to-work law simply allows people to not belong to, or pay dues to, a union if they do not want to.

Of course, unions have been a bastion for the Democratic Party for decades and those dues are used to fund campaigns for Democrats, so right-to-work threatens the Democratic Party’s power structure — so the Democrats resorted to the courts.

Dane County Circuit Judge William Foust gave his fellow liberals the ruling they wanted. The ruling is so devoid of lucidity that it will definitely be overruled on appeal, but the rationale used is worth knowing as it reveals something of the liberal mindset. Foust’s reasoning is that since the right-to-work law allows employees to not pay union dues, it erodes the money given to the unions. And since the unions are obligated to negotiate on behalf of all employees even if they do not pay dues, the law violates the constitutional provision prohibiting the government from taking property without fair compensation.

Got that? In other words, by virtue of the fact that private organizations — the unions — choose to negotiate on behalf of workers, those workers must be forced to pay for that private organization. Never mind that it is not the government denying dues, it is free people choosing to not pay dues. Never mind that the unions do not have to negotiate for anyone if they do not want to. In Foust’s mind and in the minds of his fellow travelers, the money does not belong to the individual to do with what they choose. It belongs to the collective and the role of government is to force the individual to give it to the collective.

Thankfully there is little doubt that Foust’s ruling will be overruled, but this incessant cycle of irrational judicial challenge initiated by sore losers must be mitigated. Part of the problem is that Dane County is far more liberal than the rest of the state. This is a county where more than 100,000 people voted for avowed socialist Bernie Sanders last week. That’s almost 50 percent more votes than all of the Republican votes combined. It is a liberal county that elects liberal judges.

Republicans tried to reform this in 2011 when they passed a law allowing the plaintiffs in cases challenging state laws to choose venues other than Dane County, but that reform simply allows the plaintiffs to shop for a favorable venue. Liberals will sue in Dane County and conservatives will sue in Washington County.

Instead of allowing plaintiffs to choose a venue or having all lawsuits take place in Dane County, Wisconsin should enact a lottery system for lawsuits challenging state laws. There are 249 circuit court judges in Wisconsin who are elected by their respective county’s voters, each perfectly capable of adjudicating a lawsuit. The judges in Dane County do not have any special powers or abilities that make them superior to a judge in, say, Superior.

There will be some cost associated with such a system. Since the state government is in Madison, virtually all of the resources needed to defend such a lawsuit reside near the seat of government. There will be cost in transporting those resources to other counties to defend the state, but in an age of videoconferencing and telecommuting, those costs could be easily allayed if the court chooses.

Dane County circuit judges have had too much power in the function of state government for far too long. It is time to inject some judicial diversity into the process by allowing judges elected in other parts of the state to participate.


0653, 12 April 2016


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