The Wisconsin Legislature has made a significant move by asking Supreme Court Justice Janet Protasiewicz to step aside in a pivotal legal battle over a major union law.
The Associated Press reported that this request is a critical moment in the ongoing dispute over the 2011 legislation known as Act 10, which effectively ended collective bargaining for most state employees.
Act 10 was enacted fourteen years ago and has been a contentious issue in Wisconsin politics ever since. It marked a significant change by stripping most state workers of their collective bargaining rights, which had been in place for decades.
Justice Janet Protasiewicz, who took office after winning the 2023 elections, has been a vocal opponent of Act 10. Her election victory shifted the balance of the Wisconsin Supreme Court, giving liberals a majority for the first time in 15 years.
The recent request for recusal by the Republican-controlled Wisconsin Legislature arose shortly after a Dane County Circuit judge declared that Act 10 violates the Wisconsin Constitution’s guarantees for equal protection. This decision has since been put on hold pending an appeal, with the future of the law now poised to be potentially overturned.
School workers' unions have pushed for the Wisconsin Supreme Court to take the case directly, thereby bypassing the appeals court. This move would bring the case before a court where liberals currently hold a 4-3 majority.
During her campaign, Protasiewicz openly criticized Act 10. She expressed her belief in its unconstitutionality, suggesting potential bias in her judicial approach to cases involving the law.
Additionally, Protasiewicz's participation in protests against Act 10 and her actions in signing a petition to recall then-Governor Scott Walker have fueled arguments for her recusal.
Senate Majority Leader Devin LeMahieu and Assembly Speaker Robin Vos have publicly insisted that it would be ethical and proper for Protasiewicz to recuse herself, citing her previous opposition to Act 10 and her comments during her campaign.
However, Justice Brian Hagedorn, who was Gov. Walker's chief legal counsel during the drafting of Act 10, has faced calls for recusal from Democratic leaders, although no formal request has been made. Hagedorn's involvement in the creation of the legislation itself poses questions about his impartiality.
If both Protasiewicz and Hagedorn were to recuse themselves, the liberal side of the court would hold a 3-2 advantage in any proceedings related to Act 10. This scenario adds another layer of complexity to the political implications surrounding the case.
Proponents of Act 10 argue that it has helped local governments manage their budgets more effectively by giving them the ability to modify employee benefits. Conversely, opponents believe the law has damaged the quality of public services by undermining the negotiating power of employees.
In a statement to the Milwaukee Journal Sentinel, Protasiewicz acknowledged the possibility of recusal from any legal challenges to the act, reflecting on the judicial ethics involved in cases where preconceived opinions might exist.
The request from Republicans for her recusal has been framed as a means to ensure fairness in the judiciary, asserting that Protasiewicz has already prejudged the case. Nevertheless, Jacob Karabell, attorney for the unions, dismisses the recusal demand as "meritless" and criticizes it as a tactic to delay a final resolution on the matter.