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Geske: Quick decision unlikely in bargaining case

Former state Supreme Court Justice Janine Geske says a quick decision is unlikely in the open meetings case regarding the passage of the collective bargaining law.

She says there could be a quick decision on whether the justices will take the case in general. Deciding the merits of the case, however, could take some time. And that means lawmakers shouldn’t count on a quick ruling as they take up the budget starting Tuesday.

Even if the justices can reach a resolution, Geske said she expects a split decision that will take some time to draft, particularly because there’s more than just this case at stake, including the potential to shape the “whole legislative-judicial relationship.”

EDITOR'S NOTE: This interview was conducted on June 9. The Supreme Court issued its decision in the case on June 14. See details on the decision
“We could have the mirror image of this down the road where the Democrats were in power and the Republicans weren’t, and the result ought to be the same,” Geske said in a new WisPolitics interview. “The court is going to be writing for the future in terms of guidance both for the Legislature and for the court system, and that’s what becomes difficult. It's not whether someone wins or loses here, but what is the law in this area.”

Geske, who served on the court from 1993 to 1998 following her appointment by former Gov. Tommy Thompson, said there remains the chance the justices will act quickly. But if they follow normal procedure, that’s unlikely.

Geske, now a professor at Marquette University Law School, said before oral arguments, one of the justices would have been randomly selected by the chief justice to act as the report judge and direct discussions after the hearing. Following those talks, someone from the majority will be selected to write a decision and will begin crafting it before circulating it to the other members. That draft will then be critiqued and those in the minority can write their dissent. Once the dissent is in, the majority opinion will be redrafted to respond and both sets of opinions will go through final revisions.

She said it would normally take her two to three weeks to draft a majority opinion while she was on the bench, in part because of the other cases she was handling.

This case is more complex because there are two issues at play. One is whether the court should take the case without first allowing the final pieces to play out at the circuit court and appeals court.

She said her impression of the oral arguments suggested at least a majority of the court is prepared to take the case now.

Then there are the merits of the case and Dane County Judge Maryann Sumi’s ruling invalidating the collective bargaining legislation law over an open meetings violation.

Geske, who describes herself as “pretty conservative judicially, not politically,” said after listening to much of Monday’s oral arguments, she believes the court shouldn’t take the case and instead should allow the losing party to appeal Sumi’s final order and for the case to work its normal way through the appeals process.

She said while on the court, the justices’ discussions after hearing oral arguments sometimes influenced her thinking, but her initial impression of the case is it’s not ready for a full review by the justices yet.

“It’s up there in pieces and some of the pieces are missing,” Geske said. “It would make sense to have the thing come through as a whole case and developed up and then the court should take it.”

Listen to the full interview.

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