Here & Now

Maryann Sumi Breaks Down State Supreme Court Rulings

Frederica Freyberg:

But first, the state Supreme Court handed down decisions in three hot-button cases on Thursday. They upheld the state’s voter ID law. They upheld the legality of Wisconsin’s domestic partnership registry, and they upheld the constitutionality of the collective bargaining law known as Act 10. We'll begin with the Act 10 ruling. The law was upheld on a five to two vote. Governor Walker had this to say about the decision, “Act 10 has saved Wisconsin taxpayers more than $3 billion. Today’s ruling is a victory for those hard-working taxpayers.” Assembly minority leader, Kenosha Democrat Peter Barca, issued this statement, “Collective bargaining is vital to securing workers’ rights and helping maintain a strong middle class in Wisconsin and in America. My fellow Democrats and I will continue to fight to protect the middle class and ensure every working family can have a fair shot at economic security.” We work through all three of these decisions now, starting with Act 10, with former Dane County Circuit Court judge Maryann Sumi, whose court initially overturned Act 10 in 2011, but on different aspects of the case than before the high court in this week’s decision. Judge, thanks very much for being here.

Maryann Sumi:

You’re welcome.

Frederica Freyberg:

Well, again, so you ruled on a different aspect of Act 10, but in the case before the high court this time the majority ruled, as you well know, that the law does not violate the US or Wisconsin’s constitution. We wanted to take a look at what Justice Gableman wrote in writing for the majority on this decision. He said, No matter the limitations or burdens, a legislative enactment places on the collective bargaining process, collective bargaining remains a creation of legislative grace and not constitutional obligation. But now, as you know, in dissenting, Justice Bradley said Act 10 does infringe on constitutionally protected rights. So how can it be both ways? How can these legal minds on the high court rule such an opposite manner?

Maryann Sumi:

It is– It's puzzling. But I think it makes a difference how the question is framed. And in Justice Gableman’s framing of the question, it was, is there a constitutional right to collective bargaining? There is not. I think that’s universally acknowledged. I don’t think any court has held that the constitution allows, gives a right, to bargain collectively. The different question, the one raised by Justice Bradley is, but does it offend the first amendment’s right to organize, to associate. And if you ask the question that way, it becomes much more complicated, and I think that– That’s the reason for the sort of apples and oranges approach we see in those two side-by-side opinions.

Frederica Freyberg:

And so a court can do that? They can actually look at an issue and be considering two distinct questions?

Maryann Sumi:

Well, Justice Bradley states in her dissent that we ought to be limited by the questions that are asked by the parties. That’s our adversarial system. They have the opportunity to present us with their best arguments. In her view, the court wasn’t asked to determine whether there’s a constitutional right to collective bargaining, because that’s– That’s a done deal. There is no such constitutional right.

Frederica Freyberg:

Hmm. Well, now Justice Crooks sided with the majority in concurring and upholding Act 10 in its entirety. However, he wrote this. He said, It is my view that the Wisconsin legislature and governor could have chosen a different way to accomplish a goal of cost savings that would have left intact meaningful union representation carried out through statutory collective bargaining for public employees. He says, The damage to public employee unions due to Act 10 was unnecessary. Still, he said basically, I think, that he felt he couldn’t legislate from the bench and concurred. What do you think of that kind of holding his nose and then voting yes or concurring?

Maryann Sumi:

That’s funny, because that’s the image that came to my mind, too. But of course we all know, Supreme Court justices are super-human and don’t have noses. What I thought next after that, was someone remarking on Justice Scalia this term said, He’s perfected the art of the engaged concurrence. I think that what we were seeing in the two concurrences that Justice Crooks wrote is the queasy concurrence, the I’m uncomfortable with this concurrence, but I am constrained by the rule of law. And that’s correct. Judges, justices from the top to the bottom, are constrained by the rule of law. And I think that is the discomfort. But ultimately Justice Crooks felt he had a higher duty to the law to do what he felt the law required, not what he thought was personally preferable.

Frederica Freyberg:

We move along now to another case. The court also upheld the state’s voter ID law in two separate cases, saying, Requiring a voter to present acceptable photo ID is not an undue burden and does not render the law invalid. One of those cases dealt with concerns over government documents needed to get a free photo ID such as birth certificates that can cost $20. The court found people lacking those documents, like some elderly voters, can be exempt from providing them to the DMV when seeking a photo ID. So was that regarded as a so-called saving construction of the law to make it constitutional? I mean, in other words, is that basically rewriting the voter ID law so that people don’t have to pay to get documents for the ID card?

Maryann Sumi:

Well, it’s an established principle that overturning a law on constitutional grounds is such a big deal that a court, any court, needs to go out of its way. If the law can be interpreted in a way that saves it, saves its constitutionality, then that’s what needs to be done. A savings construction, as we saw Justice Roggensack apply here, is a kind of life raft, to say, hey, this law is not going to be good unless we throw out this life raft. In this case, the life raft that was used was saying that the fee is a form of poll tax and those have long been regarded as not appropriate. I think the other opinions emphasized that poll tax has never been an issue in this voter ID legislation because poll tax doesn’t have to do with voter qualifications. It’s more pay-to-play when you go to vote. So the poll tax was used as the vehicle to allow the court to say, so we think that we can save this law by eliminating the fee provision. So what they did was say that fee provision is invalid. But it wasn’t part of the original law. It was a DOT regulation. And that’s where it becomes very almost impossibly complicated.

Maryann Sumi:

In her dissent, Chief Justice Shirley Abrahamson said this on the voter ID. She said, Today the court follows not James Madison for whom Wisconsin’s capital city is named, but rather Jim Crow, the name typically used to refer to repressive laws used to restrict rights, including the right to vote of African-Americans. Now, she pointed out that in one case the majority conceded that the cost of the birth certificate, again, amounts to a poll tax. But in the other declared all of the voter ID law constitutional. She’s saying neither opinion explained this inconsistency. What do you make of that purported inconsistency?

Maryann Sumi:

Well, I think it’s best explained by Justice Crooks’ dissent, and if there was a queasy concurrence, it was a tour de force dissent that Justice Crooks wrote. He said, It all resides in the standard of review that you apply. And that sounds like a dusty old concept from Dickens, but it’s true, that what standard of review applies really does answer the question in many cases. Justice Crooks is saying, they just applied the wrong standard of review. And that’s how we reach inconsistent rulings, in his view.

Frederica Freyberg:

So meanwhile, though, Wisconsin’s voter ID law is also before the federal courts and can’t be put in place, I understand, until the outcome of those. But Attorney General Van Hollen believes that Wisconsin’s high court ruling helps his case in the federal litigation. Do you think that?

Maryann Sumi:

It might, or it might not. They’re different issues in the federal litigation, including the federal Voter Rights Act. So it may help, it may not.

Frederica Freyberg:

All right. In the third hot-button case, the court voted unanimously to upheld the state’s same-sex domestic registry law. That law paved the way for same-sex couples to be able to register with county clerks in order to receive hospital visitation rights, as well as qualify for partner related medical leaves and inheritance. The court ruled that these rights and partnerships do not violate the ban on gay marriages as passed by voters on 2006. That constitutional amendment awaits a ruling in federal district court. Boy, this is all so complicated, right? But so the court rules that the registry is constitutional because it’s not substantially similar to the legal status of marriage. Why was this one kind of a slam-dunk for the defendant? Why was this an easy call for the justices?

Maryann Sumi:

It was unanimous, as we know, and we all like to see unanimous decisions. I think, though, the reason for that is the ruling and the reason for it felt within very familiar– fell within very familiar and comfortable legal framework, presumptions of constitutionality. The legislature can do what is appropriate within those confines. So it was not going outside the box for any of the justices.

Frederica Freyberg:

Meanwhile there’s a bigger case out there in the federal courts, as we mentioned, over the constitutionality of Wisconsin’s same-sex marriage ban. What happens to– now, to the domestic registry law if that ban is overturned? What will happen to this case?

Maryann Sumi:

Well, I think it can be a stand-alone statute. It establishes a different relationship than say a same-sex marriage. Those of us who are happily married may not believe it, but there’s some people who don’t want to be married, and maybe would want the protections of the domestic partnership law but not necessarily with marriage.

Frederica Freyberg:

How usual is it for the high court to rule on multiple high-stakes, kind of high-profile cases like these all at once?

Maryann Sumi:

Well, this was really the Niagara Falls of opinions yesterday, and I can’t recall a time when so many momentous decisions came down. But, hey, they’re on a deadline. They have to decide their cases. And they did.

Frederica Freyberg:

Now, one last question. That is, can a law like voter ID end up being litigated again if in actual practice a voter finds that he or she was in fact burdened or restricted in the right to vote?

Maryann Sumi:

Sure. And the way I can see it happening is if someone goes to the DOT, says, I don’t have my birth certificate, please just give me a photo ID anyway and the DOT administrator says, no. Then that person is left without the right to vote, and I think that’s the unanswered question, one of many.

Frederica Freyberg:

All right. Judge Maryann Sumi, thank you very much for joining us.

Maryann Sumi:

You’re welcome.