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I can’t say that I’ve studied labor and employment closely enough to develop an opinion on every issue involving unions and union politics. But I do know a botched legal opinion when I see one, and the Wisconsin Supreme Court’s anti-union opinion is a phrenic blunder unworthy even of a first-week law student.

One need only read the Wisconsin court’s decision in Ozanne v. Fitzgerald, the controversial union case, to see that the court is populated by politicians rather than jurists. One of the most fundamental paradigms in our legal system involves the relationships between different levels of courts. Most of us, when we think of courts, conjure mental images of one judge behind a bench with twelve jurors looking on while witnesses testify and lawyers lawyer. That level of court—the one that gets all the attention in our pop culture—is the trial-court level.

Generally speaking, higher courts—“appellate courts”—exist to correct legal mistakes made by trial courts. There are no juries or witnesses or evidentiary exhibits in appellate courts; appellate courts are not fact-finders—juries are. Since appellate courts don’t see witnesses or look at all the physical evidence, they generally don’t second-guess trial courts’ findings of fact.

Take, for example, a witness who testifies—over one of the lawyers’ objection—that he saw the accused stab the victim. Suppose that the jury believes the witness and convicts the accused. An appellate court won’t second-guess whether the witness was credible, i.e. whether the jury was correct to believe the witness. But an appellate court will review the legal decision of the trial judge to allow the witness to testify over a lawyer’s objection.

In the Wisconsin case, the state’s Supreme Court—the state’s highest appellate court—converted itself into a trial court and made findings of fact without even taking evidence. On top of that, none of the parties had even asked the Supreme Court to act as a finder of fact; the court did that on its own—just for giggles. This was an extraordinary breach of judicial canons and so mangled the basic tenets of our court structure that it calls into question not just the motives of the court’s members, but also their intelligence.

The court, having exceeded all bounds of its own proper role, went on to accuse the trial judge of exceeding her authority by prohibiting the publication of what she deemed to be an unconstitutional law before it could be enforced. The Supreme Court stated that by doing this, the trial judge had invaded the lawmaking province of the legislative branch, which the judicial branch may not do.

The four justices responsible for this proposition apparently missed the day in law school when we teach a case called Marbury v. Madison, which is nothing but the most famous case in all of American constitutional jurisprudence. In that case, it was established once and for all time that—you guessed it!—the judicial branch has the authority to review and decide on the constitutionality of any act of the legislative branch.

But the Wisconsin Supreme Court stated—citing another case from the same court from 1943—that a court cannot determine whether a law is constitutional until after it has been published because prohibiting its publication somehow interferes with the process of making law. (The idea here seems to be that although a court may rule that a law already made is unconstitutional, a court may not hold that the legislative branch has behaved in an unconstitutional way while making the law. Why this would be so is anyone’s guess.)

In support of this proposition, the court did no more than cite the antique case from 1943 and restate its premise. In so doing, as was noted in a stinging dissent, the court simply skipped right past more recent cases that seem to point in the opposite direction.

But more importantly, the court never explained how stopping the publication of a law interferes with the lawmaking process. By the time a law is ready for publication, it has already been made. No more committees will meet, no more floor debates will erupt, and no more drafting or editing will be undertaken. So, again, how does stopping the law from being published interfere with the process of making the law? If there is any intelligible answer to this question, the Wisconsin Supreme Court certainly could not have been bothered to provide it.

All of these infirmities—procedural mischief, the mangling of fundamental precepts of American law, the invention of facts without the taking of evidence, the failure even to address the most fundamental legal question at issue in a case—all of these are telltale indicators that something terribly untoward, and usually singularly political—is afoot.

But having elected base ideologues to the highest court in their state, the people of Wisconsin will have to seek other—even more political—avenues to remedy what they themselves have wrought.

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The reforms already have saved jobs, saved money, and improved education

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The Senate bill severely restricts collective bargaining for tens of thousands of the state's public worker unions and increases their health care and pension contributions. Wisconsin has some 175,000 public sector workers. It also would require unions to take a vote of members every year to continue to represent workers.

A number of other states where Republicans swept to victory in the 2010 elections are considering measures dealing with public sector unions. They include Ohio, Indiana, Iowa, Idaho, Tennessee, Kansas and New Hampshire.

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it would face a significant increase in premiums

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If Governor Walker succeeds in breaking the public unions in Wisconsin, other states may follow suit, and decades of rights for workers may be erased.

Wisconsin Governor Walker has refused to negotiate with unions in his state under any circumstances, unless the collective bargaining power is stripped away from state workers. The budget crisis Walker is blaming for the give-back by unions is due to tax breaks for big business and the wealthy, according to Fox News.

"Wisconsin Gov. Scott WalkerScott Walker said Monday afternoon he won't negotiate over his plan to strip most collective bargaining rights from nearly every public employee as he works to plug a $3.6 billion hole in the state budget," according to MSNBC News.

If the Wisconsin unions have agreed to accept pay cuts and additional out of pocket contributions for benefits like health insurance, why doesn't Governor Walker accept the offer that achieves the needed budget dollars?

Union supporters claim Walker is using the budget shortfall as an excuse to break unions. Some even claim that the budget crisis was made-up.

"The state budget is not in any kind of real peril. The Wisconsin Legislative Fiscal Bureau estimated that the state would end fiscal year 2011 with a gross positive balance of $121. 4 million".(see Budget at http://legis.wisconsin.gov/lfb/Misc/2011_01_31Vos&Darling.pdf)

There is more at stake in Wisconsin than pay cuts. Many suggest it is about the future of America for workers in every state. Without unions, worker safety, living wages, and benefits like health insurance, will lose their most powerful enforcer.

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Friday, Marty Beil, head of the Wisconsin State Employees Union, said his members would agree to pay more of their pension contributions and health insurance benefits as Walker is demanding. But Beil said his union would never agree to give up decades-old bargaining rights.

Beil's union is part of AFSCME, the largest state and local employee union in Wisconsin, which represents 68,000 workers for the state, Milwaukee, Milwaukee County and other municipalities. An AFSCME spokesman said Beil was speaking for all the group's union locals in the state.

"We are prepared to implement the financial concessions proposed to help bring our state's budget into balance, but we will not be denied our God-given we will not - I repeat we will not - be denied . . . right to join a real union our rights to collectively bargain," Beil said in a statement.

Mary Bell, the president of the Wisconsin Education Association Council, the state's largest teachers union, said her group also would make the financial concessions to keep its bargaining rights.

"This is not about money," Bell said in a phone conference. "We understand the need to sacrifice."

Walker flatly rejected the offer

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Around 1,500 Dane County employees represented by American Federation of State, County and Municipal Employees, or AFSCME, agreed to a temporary pay cut, to help Dane County address its severe revenue shortfall.

The negotiated agreement includes a 3 percent reduction in pay for 2010. If all county employees adopt the pay cut, it would save Dane County $4.7 million.

This is the second time in less than 6 months that ASFSCME members voluntarily agreed to pay reductions.

This past July, union members agreed to reduce their pay by 5 percent, a move that saved the county $3.3 million.

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Ya know, your parable is not unlike how you and several others would like to redistribute the wealth earned in the private sector. What does that say about you?

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Just saying that cuts need to be made and this is one I've already seen a system get by without

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Aren't they still in a deficit, just like every other state?

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Is it possible to cut taxes while addressing a state budget deficit—leaving aside misguided folk belief in supply-side economics?

Wisconsin’s new Republican governor, Scott Walker, is cutting small business taxes while trying to reduce essential spending and threatening to prevent public employees from striking. The state has a budgetary shortfall of $3 billion over two years (Wisconsin budgets biennially). But Walker campaigned on creating a business-friendly climate, and called a special legislative session to enact his plans.

Walker just won legislative approval for the centerpiece of his tax cut plan. This is a dangerous restriction on legislative action in the long run, if for no other reason than it would be difficult to repeal.

Walker’s enacted tax cut plan is punching Swiss cheese holes in the state budget for the benefit smaller businesses in terms of gross receipts (sorry, couldn’t resist that one). The Walker-instituted changes that can be priced add up to $100 million over two years already.

Oh, football clubs are businesses, too. The Green Bay Packers are reportedly planning to ask local voters to approve extension of a special additional 0.5 percent sales tax, worth $19 million annually, to fund their purchase and redevelopment of land around Lambeau Field. Public policy experts oppose the extension, arguing that sales tax revenue can be put to better use, like public education and transportation funding.

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