The Wisconsin Supreme Court has now indefinitely suspended deadlines for holding jury trials in all civil court actions because of the public threat posed by the coronavirus emergency.
Those varied deadlines are intended to expedite decisions and protect the rights of those facing various kinds of involuntary commitments and possible termination of their parental rights, or in cases of temporary placement of children in protective custody.
The court’s order specifically covers cases that statutes say must be held fairly quickly — from 14 to 90 days — to protect the kinds of fundamental civil rights conservatives say should not be ignored, even during the current COVID-19 crisis. Now those deadlines are suspended.
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The court set a public hearing, which will be held remotely, about the interim order on May 1. Afterward, it plans to meet privately to decide whether to extend, modify or repeal the order.
As they did in a prior emergency order postponing all jury trials that had been scheduled to begin by May 22, two justices again vigorously dissented from order, which they describe as a dramatic judicial overreach.
Justice Rebecca Bradley, writing the dissent that was joined by Justice Daniel Kelly, who faces a re-election challenge Tuesday from Dane County Circuit Judge Jill Karofsky, lists how the new order could keep children from their parents, the mentally ill confined against their will and some violent sex offenders in secure treatment longer than necessary.
By its order, “the majority invades the province of the legislature, violates the separation of powers, and ‘creates a confrontation of constitutional magnitude between the legislature and this court,'” Bradley writes.
“Whenever any branch of government claims the authority to act beyond the boundaries of its powers, the people should be alarmed,” she explains in a footnote. “I write for the people who cherish liberty and who recognize that elected officials are their servants, not their masters.” Bradley also authored the dissent to the court’s prior emergency order.
This time, Chief Justice Patience Roggensack shot back in a concurrence, noting that Bradley chooses to “posture and preach” and berate the other justices during the pandemic.
“One wonders for whom she is writing: who is the audience that she seeks to impress,” Roggensack writes. “Certainly, she does not write for the people of Wisconsin, whom she would require to risk acquiring COVID-19 infections when they appear to serve in civil jury trials.”
Roggensack suggests that it would likely be fruitless or impossible to have jury trials now, since many summoned jurors would likely refuse to appear, and it would be impractical for some 30 people plus lawyers and the judge to go through selection remotely, assuming they could even all connect with the proper technology.
“Jury trials are not just two words that appear in statutes,” the chief justice writes. “They are complicated, people-intensive proceedings,” which she says Bradley seems to forget.
Justice Annette Ziegler joined Roggensack’s concurrence
In a separate concurrence, Justice Brian Hagedorn writes that a statute allowing courts to reschedule and move proceedings “whenever it is deemed unsafe or inexpedient, by reason of war, pestilence or other public calamity,” along with the high court’s superintending authority, clearly supports the temporary suspension of the non-criminal jury deadlines.
Justices Rebecca Dallet and Ann Bradley joined Hagedorn’s brief opinion.
The order, posted late Tuesday to the court’s website, cites a state law and the Supreme Court’s “administrative and superintending authority” over courts and says justices had to move expeditiously to guide circuit courts “presently striving to balance” required trials and public safety concerns.
Affected proceedings include parental rights, civil commitments for mental health or alcoholism, evictions, guardianship proceedings and trials for some sex offenders seeking release from secure treatment centers after they’ve completed their criminal sentences.
In her 30-page dissent, Bradley lays the numerous issues she and Kelly have with the order, which they see as the conservative anathema of “legislating from the bench.”
She notes that the court’s rule-making authority is for procedural matters but that right to a jury trial within a certain time is a substantive right created by the Legislature.
She reads the statute regarding pestilence and other public calamity as giving each individual judge the authority to postpone or relocate a specific trial on a case-by-case basis, not granting the Supreme Court broad authority to suspend all trials.
Bradley suggests there is an absurdity in the fact the majority deems “constitutionally guaranteed jury trials dispensable” while another arm of government says liquor stores and bicycle shops are “essential” businesses allowed to operate during the same health crisis.
She also questions the majority’s strict adherence to giving notice about the hearing May 1.
“Why bother? The justices in the majority already made up their minds. Even if the court would vacate this order 30 days from now, reversing course at that point could not undo the majority’s infringement of litigants’ rights in the interim.”
Bradley concludes, “I cannot join this raw exercise of power. However well-intentioned, the court nonetheless transgresses the limits of its authority. I dissent.”
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