Saturday, June 18, 2011

State Court Says No? Go To The Feds

I hope none of you thought that the State Supreme Court ruling in Wisconsin overturning a lower court and upholding the state's new public employees collective bargaining law was the end of it. It's never the end of it when liberals don't get their way in a state court. Or in the state legislature or as the result of a public vote, for that matter.

It escaped the notice of the Wisconsin Supreme Court that requiring state workers to pay 12% of their own health insurance premiums and 5.8% of their pension costs is clearly cruel and unusual punishment forbidden by the Eighth Amendment to the US Constitution. They haven't actually made that claim yet, but give 'em time.

And then there's that discrimination thing. Police, firefighters and state patrol officers were exempted from the rule that now pegs state employee pay raises to no more than the rate of inflation. That makes file clerks and sewer inspectors second-class citizens, you see. And so last Wednesday, the poor, oppressed state union employees filed suit in federal court to undo the state court ruling. While they were at it, they also claimed that it was unconstitutional to restrict collective bargaining rights for state employees (we used to call them "public servants," but we all know that expression has long since become merely laughable).

If the public employee plaintiffs are as good at judge-shopping in Wisconsin as gay marriage advocates are in California, they'll find a federal judge who is beholden to the unions in some public or private way. Suddenly, the federal judge will find an umbra, penumbra, emanation or legal burp in the Constitution that upholds those public employee "rights." How dare the legislature and the people of Wisconsin deprive public employees of the right to earn twice what their private sector counterparts earn? How dare they reduce their already bloated salaries and benefits by effectively reducing their take-home pay by a draconian 8%, requiring them to chip in for their own benefits package? How dare the conservatives of Wisconsin quote Calvin Coolidge when he said "nobody has the right to strike against the public good?" This is Wisconsin, for God's sake, the home of Progressivism.

The old rule of law used to be that a federal court would not interfere in a state supreme court decision so long as the case could have been decided on adequate independent state grounds. That's exactly what the Wisconsin Supreme Court found--adequate independent state grounds. But we're now into our second generation of lawyers and judges who believe that the Supremacy Clause means that there couldn't possibly be such a thing as adequate independent state grounds. Despite all prior legal history, decisions, precedent, and plain wording of the Constitution, there's always some hidden federal right that a federal judge can find or create to nullify the state court decision.

The plaintiffs are all the usual suspects: The American Federation of State, County and Municipal Employees, the American Federation of Teachers, the Wisconsin State Employees Union, the Wisconsin Education Association Council, the Wisconsin State AFL-CIO, and last, but certainly not least, the Service Employees International Union.

There is already some confusion as to when the law actually goes into effect, and you can bet the union thugs will massage it. The Wisconsin lower court first put the law on hold, then struck it. So it's not clear what the actual effective date is. Could be the day after passage, or the day of the Supreme Court ruling, or even the day after the Wisconsin Secretary of State (Doug La Follette, descendant of seminal Progressive Robert La Follete) "publishes it." California and Wisconsin may be many miles apart, but confusion of law knows no boundaries.

If they can stall long enough, they may be able to find that perfect federal judge who will stay execution of the law and perhaps even strike it down. And during that time, the uncaring state employees can continue to steal from the Wisconsin taxpayers and thumb their noses at state law and the will of the people of Wisconsin. And if that doesn't work, they can always riot.


StanH said...

This is typical leftist behavior, keep voting/counting/judge-shopping, until you get the results that you want. But for me this is all good, to think, in the bluest of states, Wisconsin the people flipped their government, and regardless of the outcome of this one case, is the proverbial canary in the goldmine, the harbinger of things to come. 2012 is setting up to be a landslide election of monumental proportions, where the limb that the liberals have crawled out on screaming, “look at me!” …is going to be cut off by the voters in no uncertain terms. “If” we pick a true conservative, I believe the results will dwarf 1980, with long coattails further flipping state governments away from the dark side, allowing our great land to once again step into the bright light of freedom. So I say keep up the good work leftist, free America is watching, and taking notes.

I believe a conservative wins in 2012 - - 45-5, simple majority in the Senate, and expand the majorities in the house.

BevfromNYC said...

It may be like Moses and the Promised Land. Maybe a Federal judge will strike down this law in Wisconsin, but the same issue is coming up in other states where public service union collective bargaining rules hold sway over state budget deficits like New Jersey. The unions' demands to raise taxes to pay for their perks is not sitting well even in the bluest of states.

Unknown said...

Stan: I like your optimism, and I certainly have some of it myself. But I've been bitten so many times (most recently with California electing more Democrats in the middle of a tax-and-spend crisis) to think it's going to be a cakewalk. Perhaps I'm just giving the old-fashioned warning against overconfidence. This is likely to be the dirtiest, and most evil campaign from the left that I've seen in my lifetime. Socialists don't surrender power easily, we're going to have to take it from them, and we can't entirely rely on the electorate to see the obvious.

Unknown said...

Bev: It's the diversity of states that will ultimately save us, but we have to be cautious and remember that the left never sleeps. California is again an example of just how bad it can get. The state legislature, controlled by Democrats, finally comes up with a budget including big cuts in public spending, and the Democrat governor vetoes it. We may win the war, but we have a lot of battles to win and lose before that happens.

T-Rav said...

LawHawk, I agree with your take on the upcoming election. Leftists don't take no for an answer; they never have. This story just shows they will continue to do this over and over again until "the government/people get it right," and if it comes down to it, they'll use violence to get their way. I just hope we don't see Greece-style riots.

Unknown said...

T-Rav: I do expect some violence before this whole thing is over. The "demonstrations" in Wisconsin got very close, and SEIU thugs are known to foment violence if it doesn't happen on its own. I don't expect it to get anything like it did in Greece (or even America in the 60s). And because union membership has continuously declined over the past four decades, and we haven't reached European style complete dependence on government handouts, the violence is likely to backfire. It's up to the Republicans to frame the debate properly. Right now, they're losing ground to the "they're taking away our right to bargain" argument, when the real argument is "there is no such right for public employees, and that the privilege they were given has been abused so badly as to have driven the states and federal government into insolvency. They already have civil service protection, and OSHA protection, and unions only destroy the relationship between the public and its alleged employees."

BevfromNYC said...

/Begin rant/
There is another issue that I think conservatives need to start putting out there and that is the idea that public service employees and elected/appointed officials must play by the same rules as the general public.

Anthony Weiner can start drawing out his full pension starting at 62. Why doesn't he have to wait until 65 like the rest of us poor schlubs? He will lose HIS health benefits, but can just glom onto his wife's taxpayer financed healthcare.

We must demand that all of our government workers get what we get when we get it, not a penny more and not a day sooner. They must live by the rules and regulations that they impose. And frankly, once a Congress member resigns in disgrace, all benefits should cease including pensions. They should only be allowed to keep only the dollars that they have contributed towards retirement and healthcare through COBRA for which they must pay in full.

/end of rant/

Unknown said...

Bev: Good rant, and accurate. IF we can elect a Republican Senate and a conservative Republican President, we might finally have a shot and bringing Congressional benefits down to the level of us mere peasants. Public employees, including Congress critters, get vested benefits far too soon, in far too many arenas, and at our great expense. Frankly, I think they all ought to be required to live strictly on Social Security and any benefits they have paid for entirely on their own. That might make them re-think what is now going to be the third year in a row that there has been no cost-of-living increase for Social Security recipients. And this time, inflation is really going to eat up those benefits. They have better pensions and better health benefits by a country mile than the people who pay their salaries and whom they are supposed to represent. That's the people serving the government--the exact opposite from what the Founders intended.

Tennessee Jed said...

couple questions on this, Hawk: If they try and file in Federal Court, don't they have to address a specific state law that they claims violates federal law? If that is the case, wouldn't that determine which federal circuit court would have to be approached? I guess I am a little confused by the forum shopping aspect.

Second, why should there be any question at this time as to when the Wisconsin law goes into effect? If the state supreme court ruled the lower ruling invalid, should it not revert to a situation as if the lower court ruling never took place? Now if a federal judge determines it valid to hear the case (stifle puking noises in background) and they decide to halt implementation, then I understand that is a different story.

Last question. Why do things always go the Democrat way? Federal judge does not order a halt to Obamacare, but we have to hold our breath that another judicial slug doesn't legislate from the bench, and screw things up until theS.C.O.T.U.S. gets involved.

O.K. One more question. In your opinion, which "profession" has deteriorated worse from a supposed independant and objective mandate; journalism or the judiciary?

Unknown said...

Tennessee: Don't mistake judge-shopping for forum-shopping. The state law that is being attacked must be heard in the federal district that includes Wisconsin--thus no "forum-shopping." But there are many, many judges in that district and ultimately that circuit. One form of forum-shopping is choosing whether to file a suit in a state court or a federal court. There are often overlapping jurisdictions. But if you end up in the state court and lose, you can find some federal issue (often phony) and proceed there. The federal district/circuit is already determined by where the state court is located, but there are judges galore to present the case to. That's "judge-shopping."

For example, after the California Supreme Court upheld Prop 8, the losers spent months finding a judge who would even consider taking the matter up for motions, let alone for trial. After searching the California Districts and the Ninth Circuit, they finally found Judge Vaughn Walker, and the rest, as they say, is history.

Answer to your second question: State law is different from state to state as to what effect a state Supreme Court decision has on the implementation of the disputed legislation. I could tell you the exact answer if this were a California decision, but I do not know Wisconsin law well enough to give you a definitive answer. Many Supreme Courts might simply have said "the holding, results and findings in this matter are dispositive of all issues relevant hereto, and we further order that the [legislation] be deemed to be in full force and effect forthwith."

To your "last" question, I think the answer might be something like "because we've let them get away with it."

And to your "last-last" question, I think it depends on where your frame of reference starts. True journalism has been deteriorating since the days of Walter Duranty and the New York Times of the 20s and 30s. Judicial integrity has been deteriorating since the middle years of the Warren Court in the 60s. But if I had to choose which deterioration curve is steeper, I'd have to say the judiciary.

AndrewPrice said...

Lawhawk, I'm not worried about this at all. To win this, they need to go through the Seventh Circuit (7 of 10 judges appointed by Republicans) and they need to come up with a valid reason -- and there isn't one. In fact, there is no right to collective bargaining in the Constitution, so the only argument they could possibly make is a violation of some federal statute. But I'm not aware of any federal statute that tries to grant a right to collectively bargain to state employees.

Unknown said...

Andrew: I agree with your conclusion, but I still have infinite faith in the ability of lower court federal judges to find an all-new and previously unknown fundamental right. But given the makeup of the 7th Circuit, I tend to agree that it won't have to go to the Supreme Court.

But when it comes to valid reasons, activist judges don't need no stinking valid reasons. Remember this about the Constitution--it's alive, it's alive!

Joel Farnham said...


Which Federal judge do you think will be induced to putting a stay on Wisconsin's law?

This makes me mad at California. They are the ones who pioneered the shop the judges until you get what you want scheme.

Unknown said...

Joel: Outside the Ninth Circuit, I know very little about the judicial panels. It's relatively easy to track the limited number of judges sitting on the various Courts of Appeals, but there are literally hundreds of lower court judges to keep track of (678, officially), so most of us just concentrate on our own District and Circuit. When I moved to San Francisco I had to learn the names of all the judges in the Northern District of California, and forget the names of the Central District (Los Angeles and environs). I now live in the Eastern District which meets in Fresno and Sacramento. I never did know any of the judges in the Southern District which covers San Diego to the Arizona border.

As for judge-shopping, that's as old as the hills and can't be blamed on California. We just elevated it to a high art.

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