- The Honorable Juan Colas is a "liberal activist judge."
- Liberals legislate from the bench when they lose elections.
However, the same, fortunately, can not be said for the other side.
|Professor Ed Fallone|
The first part of his essay on this case provides with several examples which support Judge Colas' ruling. For the lay person like me, the meat and potatoes come in the second half of his article:
There is no constitutional requirement that the state government bargain with public employee unions at all. However, once the state government decides to bargain, it may not do so under rules that penalize membership in particular unions. By arguing that Act 10 applies different treatment to public safety unions than it does to more general public employee unions, the plaintiffs have raised legitimate constitutional claims that often have been decided by the courts on very fact-specific grounds. In this regard, Judge Colas’ ruling is neither exceptional nor unprecedented.Pretty good stuff, eh?
Objections to some of the specific details contained within Act 10 could have been raised and addressed if the legislation had been introduced and considered via the normal legislative procedures. Fixing any constitutional defects during the drafting process could have been a simple matter. Instead, the bill was introduced and passed without public scrutiny or debate. This litigation once again demonstrates the truth to the adage that “haste makes waste.”
I am sympathetic to the argument that hard fought legislative accomplishments should not be undone by after the fact court challenges. Judges should presume the constitutionality of statutes, unless challengers overcome such a presumption. Such judicial deference accords finality to the actions of the legislative branch. However, complaints about litigation undoing the hard work of the legislature ring hollow when they come from an Attorney General that ostentatiously joined in the litigation seeking to overturn ObamaCare.
The conservative “noise machine”– consisting of ersatz news media, think tank “experts,” and political campaign consultants — will no doubt seek to mold public opinion in this case. They will ignore the merits of the legal claims at issue and try to convince the public that any adverse ruling is the result of one partisan judge acting without legal authority. Of course, the consequence of such a strategy is to intimidate judges who might otherwise give legal claims against the State a fair hearing, and also to steadily undermine the public’s confidence in the legal system.
Members of the State Bar should refuse to play along with this game. By all means, we should feel free to criticize the reasoning of Judge Colas’ opinion. His application of the precedent to the specific provisions of Act 10 is fair game for critical analysis. However, anyone who has been following the nationwide litigation concerning public employee bargaining rights must recognize that Judge Colas was correct to take the plaintiff’s constitutional arguments seriously.
However, as I noted before, do not expect too much from the State Supreme Court. What with David Prosser, Mike Gableman and Annette Ziegler, there is little chance that the case will be actually judge on its legal merits, but rather solely on what their campaign donors want.