Supreme Court conservatives erupt as Act 10 litigation unfolds

A divided state Supreme Court recently gave the state Legislature a mere three-day extension to respond to a petition asking the court to directly take up a challenge to the state’s law prohibiting most collective bargaining by public employees, with two justices sitting out any participation in the decision.

The Legislature had asked for two more weeks to respond to the petition, but the justices gave them only three days, which would have been midnight on Feb. 5.

Meanwhile, swing justice Brian Hagedorn recused himself not only from the motion at hand but from the entire case, while liberal justice Janet Protasiewicz sat out the motion but did not offer any word on her future participation; legislative leaders have asked Protasiewicz to also recuse herself from the case.

At stake is the signature legislative achievement of former Gov. Scott Walker, the 2011 bill known as Act 10. Liberals say the law is an unconstitutional attack on workers’ rights; conservatives defend the act’s constitutionality and say it has saved taxpayers billions of dollars to boot.

Progressives have lost several cases trying to the get the law voided. However, with the election of Protasiewicz to the bench, liberals reclaimed a 4-3 court majority, and emboldened teachers unions went to court to make their case. In December, a Dane County circuit judge threw out most of the law as a violation of the state constitution’s equal protection guarantees.

Specifically, the judge determined the law’s exemption for a category of “public safety” employees — allowing them to continue to collectively bargain — denied equal protection to other general public employees.

Now the unions want the high court to bypass the appeals court. The Dane County decision is on hold pending the outcome of the case.

Three days and a recusal

In giving the legislature three days rather than two weeks, the court majority — minus Hagedorn and Protasiewicz — did not offer any reason for denying the legislature the longer time period. But dissenting conservative justice Rebecca Grassl Bradley, joined by chief justice Annette Kingsland Ziegler, did provide her take, and she wasn’t happy with the denial of the motion.

“The Legislature requests a two-week extension to file its response to the bypass petition,” Bradley wrote. “The majority gives it three business days. There is absolutely no reason to deny the Legislature’s request, unless three members of this court wish to fast track yet another politically charged case for the purpose of overturning settled law on an issue already decided by this court eleven years ago.”

Indeed, Bradley wrote, the Legislature passed Act 10 nearly 14 years ago, and the state Supreme Court had already upheld its constitutionality, including on the equal protection grounds argued in the current case.

Bradley accused the three liberal justices — Jill Karofsky, Ann Walsh Bradley, and Rebecca Dallet — of unacceptable behavior.

“Two of the three members who deny the Legislature’s requested extension displayed such hostility, derision, and disrespect toward the Legislature’s attorney in a politically charged case the court heard earlier this month, that denying the Legislature’s extension request appears to be rooted in something other than the law,” she wrote. “The requested extension would have been granted in the ordinary course by the chief justice, but the new majority rewrote the court’s internal operating procedures to strip the chief justice’s powers for the very purpose of expediting the new majority’s preferred cases. This order needlessly and inexplicably compresses the Legislature’s time to respond, demanding undue haste where no legitimate urgency exists.”

While the Legislature was being squeezed in its response time, justice Brain Hagedorn was recusing himself from the case altogether. Ostensibly, if Protasiewicz continues to participate, that would give progressives a 4-2 advantage, though not necessarily because Hagedorn is more of a swing vote who sides with the progressive wing of the court much of the time.

Still, it certainly doesn’t help the conservative side, but Hagedorn said he had to make the call because members of the judiciary take a solemn oath to be independent and impartial. 

“Our duty is to call it straight in every case, with neither partiality nor prejudice toward anyone,” Hagedorn wrote in his recusal order. “The law must guide our decisions — not politics, tribalism, or personal policy views.”

To that end, Hagedorn wrote, a variety of statutory standards and court-promulgated rules regarding recusal have been adopted.

“These rules go beyond what the constitution requires, and are aimed at protecting against actual and perceived partiality,” he wrote. “In my view, recusal on this court should be rare — done only when the law requires it. Going beyond that can create problems.”

Indeed, Hagedorn continued, the court has seen how recusal can be weaponized by parties seeking a litigation advantage.

“And justices who recuse cannot be replaced with another, which heightens our obligation to decide cases when recusal is not mandatory,” he wrote.

Nonetheless, Hagedorn wrote, recusal is not optional when the law commands it. 

“After reviewing the filings and the various ethical rules I am sworn to uphold, I have concluded that the law requires me to recuse from this case,” he wrote. “The issues raised involve matters for which I provided legal counsel in both the initial crafting and later defense of Act 10, including in a case raising nearly identical claims under the federal constitution. Accordingly, I will not participate in this case.”

Protasiewicz’s turn?

While the GOP-controlled legislature has filed a motion urging Protasiewicz to recuse herself only she has the power to recuse, she cannot be compelled. The motion was already in the works when Hagedorn benched himself, but it undoubtedly takes on new significance now that he has done so.

The bottom line is, the attorney for the legislature, Misha Tseytlin, argued, judicial ethics laws require it.

“Justice Protasiewicz emphasized during her campaign and investiture the importance of giving everyone who comes before the court ‘a fair shot’ and ensuring that no one ‘feel[s] like the thumb is on the scale against them,’” Tseytlin wrote in the motion to recuse. “Applying that standard to 2011 Wisconsin Act 10 specifically — the subject of the present appeal — justice Protasiewicz acknowledged that her recusal may be required.”

Indeed, Tseytlin wrote, when asked whether she would recuse should Act 10 come back before the court, Protasiewicz answered, “[I]t’s a maybe, it’s a solid maybe.” 

Protasiewicz was certainly candid on the campaign trail, Tseytlin wrote, observing that she was one of the Act 10 protestors at the Capitol; she signed the petition to recall Gov. Scott Walker over Act 10; and she agreed Act 10 was unconstitutional.

“Based on all of that, she agreed that her views might require recusal should Act 10 come before the court again,” he wrote. “That time has now come.”

It was more than a decade since Act 10 became law that the unions again sued, Tseytlin wrote, and a mere four months after Protasiewicz’s investiture that the public sector unions sued again.

“They claimed the Act’s distinction between ‘general’ and ‘public safety’ employees violates equal protection and flunks rational basis review,” he wrote.

The Dane County circuit court agreed, Tseytlin acknowledged, and now Protasiewicz has a chance to make good on her campaign pledge. The unions are asking the Supreme Court to bypass the appeals court.

“As justice Protasiewicz emphasized on the campaign trail, no party who comes before this court should feel there is a thumb on the scale against it,” he reiterated. “A justice’s prejudgment of any case, or the appearance of prejudgment, requires her recusal. Wisconsin law and this court’s rules require recusal whenever a judge ‘cannot, or it appears he or she cannot, act in an impartial manner,’ or ‘has a significant . . . personal interest in the outcome of the matter,’ or has made a public campaign statement that ‘commits, or appears to commit, the judge with respect to . . . an issue in the proceeding.’” 

Due process

Following enactment, Tseytlin recounted, Act 10 faced legal challenges in both federal and state courts, including equal protection challenges, and it survived all those challenges.

“In Wisconsin Education Association Council v. Walker, the Seventh Circuit rejected the same question presented in this case — whether the distinction between ‘general’ and ‘public safety’ employees satisfies rational basis review — under the coextensive federal Equal Protection Clause,” he wrote. “The court reasoned that the Act 10 generally ‘promot[ed] flexibility in state and local government budgets by providing public employers more leverage in negotiations,’ but that ‘Wisconsin was free to determine that the costs of potential labor unrest exceeded the benefits of restricting the public safety unions.’” 

Applying rational basis review, Tseytlin wrote, the court upheld Act 10 despite arguments that its categories for “general” and “public safety” employees were “overinclusive” or “underinclusive.” 

“Likewise in MTI, this court rejected an equal-protection challenge to Act 10’s application to represented, but not unrepresented, ‘general’ employees because Act 10 satisfied rational basis review by ‘promot[ing] flexibility in . . . government budgets’ and ‘improv[ing] Wisconsin’s fiscal health,’” the motion stated.

In that case, Tseytlin acknowledged, justice Ann Walsh Bradley dissented, joined by then-chief justice Shirley Abrahamson, both of whom wrote that the law should be subject to strict scrutiny rather than rational basis review.

Despite those decisions, Tseytlin argued, Protasiewicz continued to maintain that the law was unconstitutional, and did so on the campaign trail for her Supreme Court seat.

For example, on the podcast Pod Save America, Tseytlin explained, Protasiewicz explained that “The New York Times asked me about it. And they said what do you think, do you think Act 10 was unconstitutional? And I said, ‘well, I agree with the dissent in that case [i.e., MTI], where the author said Act 10 is unconstitutional.’”

In an interview with the Milwaukee Journal Sentinel editorial board, Tseytlin continued, Protasiewicz recalled her conversation with The New York Times, and again repeated: “I agree with the dissent in that case.”

“At the end of March on the campaign trail, justice Protasiewicz was asked if she would recuse were Act 10 to come before the Supreme Court, [and] justice Protasiewicz said, ‘You know, I’d have to think about it,’” he wrote. “She explained, ‘Given the fact that I marched, given the fact that I signed the recall petition, would I recuse? Maybe. Maybe. But I don’t know for sure.’”

Asked to elaborate, Tseytlin said she replied, “I don’t know how the issues would be framed, if they’re framed at all. I don’t know if that’s going to come in front of the court again, quite frankly — I have no idea. So it’s a maybe, it’s a solid maybe.”

In addition to her public statements, Tseytlin argued, Protasiewicz received financial support for her campaign from many political action committees associated with public sector unions, including $1,500 in direct contributions from a PAC affiliated with the Wisconsin Education Association Counsel Region 5 — an affiliate of Beaver Dam Education Association, a plaintiff in this case.

Do me a solid

In the motion, Tseytlin summarized what he said were important markers for recusal: Protasiewicz agreed during her campaign that justice must be fair and impartial, and she agreed that the fundamental fairness principle might require her recusal in a case challenging Act 10.

“When asked about recusing in an action over Act 10 specifically, justice Protasiewicz was candid: whether she would have to recuse was a ‘solid maybe,’” he wrote. “With the question of Act 10’s unconstitutionality back before this Court, justice Protasiewicz should recuse under state law and the federal Due Process Clause.”

Under Wisconsin law, Tseytlin wrote, “[a]ny judge,” including a “supreme court justice[],” “shall disqualify himself or herself from any civil. . . action or proceeding” under two relevant circumstances.

“First, a judge must recuse ‘[w]hen a judge determines that, for any reason, he or she cannot, or it appears he or she cannot, act in an impartial manner,’” he wrote. “Second, a judge must recuse ‘[w]hen a judge has a significant financial or personal interest in the outcome of the matter.’”

That is a mandatory disqualification statute, Tseytlin asserted.

“If those circumstances are present, recusal ‘must occur,’” he asserted. 

What’s more, Tseytlin argued, a Supreme Court rule requires recusal under two other circumstances. 

“First, a judge must recuse ‘when the facts and circumstances the judge knows or reasonably should know establish’ that ‘[t]he judge, while a judge or a candidate for judicial office has made a public statement that commits, or appears to commit, the judge with respect to . . . an issue in the proceeding,’” he wrote, quoting the rule. “Second, a judge must recuse ‘when reasonable, well-informed persons knowledgeable about judicial ethics standards and the justice system and aware of the facts and circumstances the judge knows or reasonably should know would reasonably question the judge’s ability to be impartial.’”

As applied, Tseytlin wrote, Protasiewicz candidly acknowledged on the campaign trail that recusal might be required if someone again challenged Act 10’s constitutionality. 

“After all, she was one of the Act 10 protestors,” he wrote. “She signed the recall petition. And she was transparent about her views on the Act’s constitutionality — she agreed with dissenters in earlier litigation that it was unconstitutional.”

Now that this renewed challenge to Act 10’s constitutionality has materialized, Protasiewicz’s caution about her ability to participate was exactly right, Tseytlin argued. 

“Her recusal is warranted because of the appearance of partiality prohibited by state law and this court’s rules,” he wrote.

Protasiewicz’s campaign statements create the appearance of partiality, Tseytlin asserted.

“When it appears that a justice has prejudged the merits of a case, she must recuse,” he wrote. “Under this Court’s Code of Judicial Conduct, ‘‘[i]mpartiality’ means the absence of bias or prejudice in favor of, or against, particular parties or classes of parties, as well as maintaining an open mind in considering issues that may come before the judge.’” 

Where a justice has already remarked that she agrees a law is unconstitutional, one could conclude that she does not ‘maintain[] an open mind in considering’ a later constitutional challenge, Tseytlin argued.

In addition, Tseytlin argued, Protasiewicz has a significant personal interest in the outcome of the case, which he argued would create “a disqualification by law.”

“During her campaign, justice Protasiewicz made several comments evincing her personal views on this case and her personal interest in Act 10,” he wrote. “She emphasized that she ‘come[s] from a union family’ and ‘was a union member,’ that she ‘marched at the Capitol in protest of Act 10,’ and that she signed the resulting petition to recall Gov. Walker.”

Bottom line, Tseytlin argued, Protasiewicz clarified her substantial and direct personal interest in Act 10 while on the campaign trail, and thus should not participate in this case. Also, Tseytlin wrote, Protasiewicz’s statements commit her to a position in the case, so much so that a reasonable well-informed person would question her ability to be impartial.

“For the same reasons she should recuse under subsection (g) of Wisconsin’s recusal statute, justice Protasiewicz should recuse under this court’s rule,” he wrote. “Justice Protasiewicz herself questioned her ability to be impartial should Act 10 come back before the court. On the possibility of recusal, it was ‘a solid maybe.’”

Finally, Tseytlin wrote, due process requires Protasiewicz to recuse, observing that due process does not require proof of actual bias.

“This is an ‘objective’ inquiry, which requires consideration of ‘all the circumstances of th[e] case,’” he wrote, quoting case law. “The question is ‘not whether a judge harbors an actual, subjective bias,’ but is instead ‘whether, as an objective matter, the average judge in his position is likely to be neutral, or whether there is an unconstitutional potential for bias.’”

Protasiewicz’s comments during her campaign strongly indicate a “serious risk of actual bias,” Tseytlin wrote.

Tseytlin also addressed another core issue of the case — whether Act 10’s sorting of public employees is constitutional. 

“During her campaign, justice Protasiewicz emphasized her support for and association with unions who stand to benefit from the court’s renewed look at Act 10, stating that she ‘come[s] from a union family’ and ‘was a union member,’” he wrote. “And she emphasized that her disagreement with Act 10 and support for those unions culminated in her ‘march[ing] at the Capitol in protest of Act 10.’ She also repeatedly emphasized her view that Act 10 was unconstitutional.”

Consistent with the federal due process clause, Protasiewicz cannot preside over the appeal, the attorney argued.

And finally, Tseytlin asserted, this was not a case where Protasiewicz simply indicated a “general opinion regarding a law at issue in a case before . . . her.” 

“Instead, by stating that Act 10 is unconstitutional, by recalling actions she took in opposition to Act 10, by announcing she agreed with dissenters in Act 10’s previous constitutional challenge in this court, and by agreeing that her beliefs may indeed require recusal, justice Protasiewicz’s comments create the constitutionally intolerable perception that this appeal will have been prejudged,” he wrote. “The federal Due Process Clause requires her recusal.”

Richard Moore is the author of “Dark State” and may be reached at richardd3d.substack.com.