The Wisconsin Supreme Court’s Caperton Moment

wisconsin-supreme-courtThe definitive litmus test for the impartiality and competence of the Wisconsin Supreme Court took the form of a lengthy opinion issued in response to the consolidated action State of Wisconsin ex rel. Two Unnamed Petitioners v. Peterson (2015 WI 85) by our state’s highest court on July 16, 2015. They failed this test miserably. In that one day, the court managed to squander the entirety of its judicial capital and to risk making itself into a tribunal that is an insult to the distinguished jurists who have come before them. This is about much more than the unjustified halting of a bipartisan probe into potentially severe violations of Wisconsin’s election laws — it is a prime illustration of the corrosive and corruptive influence that money has on politics and, in particular, judicial politics. These decisions are more misguided and indeed may possibly be more corrupt than the decisions reached by the West Virginia Supreme Court that led to the now-famous United States Supreme Court decision Caperton v. A.T. Massey Coal Co. (556 U.S. 868) and inspired John Grisham’s best-selling novel The Appeal.

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Wisconsin’s State Motto: Forward or Backward? The Potential Demise of Open Records Law

In 1851, the state of Wisconsin adopted the simple word Forward as its state motto. It’s a powerful word that has symbolized the State’s progressive history. Lately, though, it seems like we’ve been going backward rather than forward. Case in point: open records law.

Wisconsin’s open records law has been around since 1981. Embodied in sections 19.31-19.39 of the Wisconsin Statutes, the law begins with a broad declaration of policy: “all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them.” Wis. Stat. § 19.31. The law “shall be construed in every instance with a presumption of complete public access, consistent with the conduct of governmental business. The denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied.” Id.

Open records law is consistent with transparency in government. Brett Healy, president of the conservative think-tank MacIver Institute, said, “Transparency in government is not a liberal or conservative issue, it is a good government issue. Taxpayers deserve access to government records, so they can keep politicians all across this great state honest and accountable.”

And the law has been used to do just that.

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A Rebellion of Giants: Dixon, Ryan, and Taming the Railroads in the Gilded Age

Chief Justice Luther S. Dixon
Chief Justice
Luther S. Dixon

This is the fifth in a series of Schoone Fellowship Field Notes.

Eastern jurists such as John Marshall, James Kent, Oliver Wendell Holmes, and Benjamin Cardozo have received the lion’s share of attention from law professors and historians over the years. Two fellow giants from the Midwest, Michigan’s Thomas Cooley and Iowa’s John Dillon, have been relegated to comparative obscurity.

Cooley and Dillon played a central role in shaping the contours of modern American constitutional law. They forged their philosophies in the heat of two critical judicial debates over the role of railroads in American society. Two Wisconsin justices, Luther Dixon and Edward Ryan, were also leaders in those debates, and their contributions to American constitutional law deserve to be better known.

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