Sykes Interviews Bucher Tuesday on Our Activist AG and Activist Supreme Court
Here's what Paul had to say:
Charlie commented that this lawsuit could in theory establish a major precedent in having the courts order local governments to extend the benefits to domestic partners.
Paul responded: No doubt about it, whose side is she (Lautenschlager) really on? And why is she doing everything she can in concert with the ACLU to try to keep our elected representatives out of a lawsuit that could cost the state millions of dollars? This isn’t the first time. She did this previously in a lawsuit (side with the plaintiff when she's supposed to be representing the State). You don’t have to look far to see that this is a major issue that could really cost taxpayers and set policy and Legislators should be allowed to intervene.
Charlie said that activist courts in issues like this are trying to do an end run around elected officials and basically order an expenditure of tax money.
Paul agreed. He said: You saw in the last budget cycle that the governor thinks this is a good idea. It's a slippery slope the state shouldn’t go down (domestic partner benefits). Right now we have an activist State Supreme Court, and everyone needs to realize where the current court is going. Also, the AG is supposed to be the lawyer for the State. We don’t have a lawyer on this issue. She is basically siding with the ACLU in agreement that the State of Wisconsin Legislature should not be able to come in. We don’t have any representation. The Legislature should be able to voice its concern.
Charlie said that the Legislature is hiring an outside lawyer and trying to intervene because Legislators don't believe that Lautenschlager is really on the State's side.
Paul responded that intervening in law suits like this, such as the Legislature is trying to do, is very common. Look at State Supreme Court decisions, you will see all the individuals who file briefs as friends of the court. The Legislature is saying to Peg, I don’t trust you, and we need other individuals giving information before this Court makes a policy decision that affects all taxpayers. Unfortunately we don’t have anyone representing us.
Charlie turned the conversation over to the new activist state Supreme Court and asked Paul his opinion about how far the Court has gone in recent decisions on malpractice and police matters especially.
Paul said, It's amazing how important one vote is. This current Supreme Court adopted what's called New Federalism. Shirley Abrahamson has been chomping at the bit to institute it but she didn’t have the votes. She does now with Louis Butler. The Court said we don’t care what the US Supreme Court says, we're going to use the Wisconsin Constitution.
Charlie asked Paul how he would define New Federalism, saying it's an important issue a lot of people don't understand.
Paul said,It basically states that this state is using its own Constitution rather than the US Constitution. The wording is almost the same (in both Constitutions). But the Court has in recent decisions used the State Constitution to give criminals more rights than the US Supreme Court says is required. For example, if an individual is arrested in a bank robbery both federal and state, the individual would have greater rights if you prosecuted them in State Court than if Biskupic prosecutes them in Federal Court.
Charlie said, Educate the public. When courts begin to impose their ideas on the Legislature, where do you draw the line?
Paul said, The physicians and doctors are aware of that, they have woken up to the power of the Supreme Court (in the medical malpractice case) and we will hopefully have a race soon - people are saying that one Justice will retire. That would be a huge, huge race to pull power from the current chief justice and rather than an activist court to return back to a court that will interpret the law. We have seen the activist court in the malpractice case and the police showup decision. The result of that is that an individual who didn’t do a crime may be retained for a show up. The Wisconsin Supreme Court is snubbing its nose at the US Supreme Court.
As Attorney General, I will do everything I can to reverse that trend quickly.
CHARLIE then wrapped up the segment saying the situation is strange because everyone knows the governor and AG both want to extend benefits to same sex couples. And however people feel about that, he argues it's a decision that elected officials should make. It's a benefit that should be negotiated and approved by the Legislature. The problem is they have their lawyers but our lawyer is Peg Lautenschlager, who's not on our side on this issue. So the Legislature is going to hire outside lawyers to make sure it's heard. But now Lautenschlager has joined with the ACLU to say, tell the Legislature to shut up on this case. It's outrageous. He said Paul made the point well that, given the legal climate, the next time we have a 4-vote majority on the state Supreme Court, local goverments may no longer have any choice and state government will no longer have the choice on this issue because judges just order this. This is legislating from the bench. This is what we mean when we talk about activist judges.