The state Legislature and Gov. Scott Walker just gutted the basic American concept of three co-equal branches of government and made it more like two co-equal branches and a corporation.
The third branch, the court system, was whittled down to a twig that can be easily bent to accommodate the needs of Foxconn Technology Group.
Unfortunately, this is precedent, not a one-off. Other corporations and special interests are sure to line up at the legislative trough seeking similar favors and the ability to manipulate the courts to their advantage.
Perhaps the most egregious portion of the law automatically stays, whenever an appeal is filed, any circuit court decision related to a government decision pertaining to an “electronics and information technology manufacturing zone” (EITM), the special designation the state is giving the Foxconn site.
In other words, while an appeal is pending, the company can continue doing what a judge already has said it cannot legally do or refuse to do what a judge already has said it must do. (A party can ask an appeals court to modify the stay, but there is no telling how long a decision will take or what happens if a modified stay is appealed.)
The law also takes away the ability of the Court of Appeals to decline to hear some Foxconn/EITM cases. The appeals court must accept these appeals, which relate to government decisions, even if the cases are completely and obviously without merit. (And remember, once the meritless appeal is filed, the lower court ruling is suspended — advantage, Foxconn.)
The law also allows Foxconn-related appeals, unlike almost all other appeals, to take a direct route to the state Supreme Court, without waiting for the state Court of Appeals to weigh in, and requires the high court to give preference to Foxconn/EITM cases involving a government decision concerning the entities.
The Wisconsin Legislative Council already has warned that the Legislature’s new interference in court operations well may be unconstitutional. The council, while not taking a definitive stand, said the automatic stay provision, the fast-track to the state Supreme Court, and the requirement that the high court give preference to Foxconn cases are the most problematic areas.
The concept of separation of powers is not a boring civics lesson that it’s OK for lawmakers to ignore and for the rest of us to forget after the seventh grade. As the U.S. Courts website puts it: “Separation of powers is the fundamental way our government balances power so that one part of the government doesn't overpower another. The idea is that each branch of government has its own roles and areas of authority.”
Walker and the Legislature are trampling all over the idea and practice of separation of powers.
They are telling the courts to treat certain cases involving a single entity differently than they treat all other cases.
They are limiting the powers of circuit and appeals courts.
They are telling the Supreme Court to give special consideration to cases involving a single corporation.
There is no doubt that more special interests will be seeking — and getting — their own legal favors and advantages, just like Foxconn got.
But for now, to accommodate one company that has made many promises that it may or may not keep, the Legislature and Walker weakened the foundation of a fair society.
It’s Foxconn first — and everybody else last.
Gretchen Schuldt is executive director of the Wisconsin Justice Initiative. The organization’s mission is to advocate for progressive change in the Wisconsin justice system.
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