Separation of Powers from a Legislator's Perspectivve

Separation of Powers from a Legislator’s Perspectivve

By

State Representative Evan Goyke Assembly District 18, Milwaukee

I. What Level of Understanding Do Legislators Have About Separation of Powers?

Only About 10% are Lawyers Training on the Judicial Branch is Brief No Special Training on Separation of Powers

II. The Legislative Process Beyond School House Rock

How a Bill Really Becomes a Law Thousands of Bills, Hundreds of Bad Ideas From Idea to Legislation – Role of the Legislative Reference Bureau Drafters Take Instructions from Legislators, Staff or Others Desired Goal/Change vs. More Nuanced Implications of Changing Statutes From Proposed Legislation to Law – Role of the Legislative Council Legal Opinions on Meaning of the Legislation Not Legally Binding but Can be Used in Later Litigation Example of Memo Attached – September 19, 2017 Memo re FoxConn Legislation (which became 2017 Wisconsin Act 58) Individual Legislators Must Make the Separation of Powers Argument, often not “on message” for Political Debates

III. Intentional Legislative Overreach – Some Examples FoxConn Legislation, 2017 Wisconsin Act 58 Required Certification by the Court of Appeals Stay Pending Appeal Supreme Court Preference

Caucus Scandal Legislation, 2007 Wisconsin Act 1 Several Criminal Cases Brought in Dane County Former Speaker of Assembly Convicted in Dane County of 3 Felony Counts but Conviction Overturned on Appeal Legislature Intervened with Passage of 2007 Wisconsin Act 1 Venue of Action Changed to County of Residence Rather than Where Crime Committed (but only for political crimes) 971.223 Change of place of trial for certain violations. (1) In an action for a violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19, or for a violation of any other law arising from or in relation to the official functions of the subject of the investigation or any matter that involves elections, ethics, or lobbying regulation under chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19, a defendant who is a resident of this state may move to change the place of trial to the county where the offense was committed. The motion shall be in writing. (2) The court shall grant a motion under this section if the court determines that the county where the offense was committed is different than the county where the defendant resides. If there is more than one county where the offense was committed, the court shall determine which of the counties where the offense was committed will be the place of trial. The judge who orders the change in the place of trial shall preside at the trial and the jury shall be chosen from the county where the trial will be held. Preliminary matters prior to trial may be conducted in either county at the discretion of the court. The judge shall determine where the record shall be kept and, if the defendant is in custody, where the defendant shall be held.

Just to be sure, the Legislature created s. 801.64 Legislative findings; 2007 Wisconsin Act 1 to read:

801.64 Legislative findings; 2007 Wisconsin Act 1. The legislature finds that providing under 2007 Wisconsin Act 1 for the place of trial in the county where the offender resides is consistent with the legislature’s authority under article I, section 7, of the constitution and with previous acts by the legislature providing for the place of trial in counties other than where the elements of the offense may have occurred. The legislature further finds that allowing defendants charged with violating offenses covered by 2007 Wisconsin Act 1 to request a trial in the county where the offense occurred is consistent with the protections in article I, section 7, of the constitution. The legislature finds that violations of offenses covered by 2007 Wisconsin Act 1 are violations of the public trust that should be adjudicated in the county where the offender resides so the individuals who the defendant interacts with daily, serves, or represents as a public official or candidate and whose trust was violated by the offense will judge the defendant’s guilt or innocence. The legislature further finds that to so provide is consistent with equal protection of the laws under article I, section 1, of the constitution. The legislature finds the venue provision in 2007 Wisconsin Act 1 represents an appropriate balance between the rights of the defendant and the need to prevent and prosecute civil and criminal offenses covered by 2007 Wisconsin Act 1.

Key language above: “[The action] is consistent with the legislature’s authority under Article I, section 7…” (legislature declares no violation of Separation of Powers) Result was a Change in Venue to Waukesha County, a Plea Agreement and Conviction of a Single Misdemeanor

IV. Examples of Legislative Reaction to Judicial Action: Separation of Powers Does Not Mean Respect Most Legislation Impacting the Judicial Branch are in Areas of “Shared Powers,” so no Constitutional Violation A Sample of Headlines and Comments Show the Displeasure both Political Parties Share with the Judicial Branch: • “Wisconsin’s Secret Legislature: Dane County Circuit Court” • “activist judges suffocate liberty for all people” • “Gave man guilty of attempted sexual assault of a child 2 years in prison when facing 30 years” (anti Dallet ad) • “let a child predator walk without time and let a rapist who preyed on an underage girl go free after only an eight-month sentence” (anti Screnock ad) • “Judiciary is weak link in criminal justice system” (former Milwaukee County Sheriff David Clarke)

Often After Public Outcry over a Case’s Outcome, Legislators are Quick to Change the Law and Blame the Courts. This often Includes a Reduction of Judicial Discretion: • Outcry over a few sentences for repeat drunk driving cases led to increased use of mandatory minimum penalties. • The John Doe series of investigations and legal cases led to a rewrite of the statues and changes to procedure. • A 69 year old man posted $75,000 cash bail and was released, lives in the same subdivision as a legislator. After outcry from the neighbors, a constitutional amendment to change the cash bail system was introduced and passed the Assembly. • Reports on outcomes of criminal cases are often used to attack judicial decisions, increase mandatory minimums: http://mediatrackers.org/2014/06/26/crime-statistics/

V. Conclusion: Don’t Expect Things to Change

The Disrespect for Court Decisions Seems to be Growing Nationally and in Wisconsin. Decisions are not Trusted and Often Targeted by both Parties. Judicial Elections Have Become More Partisan and the Legislature Continues its Overreach. The More Partisan the Courts Become, the More the Legislature Will Invade the Judicial Branch Without Direct Law/Constitutional Change to the Separation of Powers, Outcomes Won’t Change Some States Explicitly define the Separation of Powers, Wisconsin is Implicit. The Change May Decrease Problems, but What Political Will Exists to Make the Change?