MADISON — An unprecedented change in Wisconsin law that would send challenges to Foxconn Technology Group’s plant straight to the conservative-leaning state Supreme Court would hand the company an advantage nobody else doing business in the state enjoys, legal experts said Wednesday.
Republicans on the Legislature’s budget-writing committee added language Tuesday to Gov. Scott Walker’s $3 billion incentives package for the plant that would allow parties in lawsuits involving the facility to appeal trial judges’ rulings directly to the Supreme Court rather than work through the intermediate appeal court process. The provision also would automatically stay any trial judges’ rulings pending the outcome of the appeal.
The move would represent a massive shift in state law. Right now, the Supreme Court decides what cases to take and nobody has a right to be heard before the high court. No rulings are automatically frozen pending appeal.
It signals Republicans anticipate challenges to the plant’s construction and other parts of the incentives package that exempt the plant from a host of environmental regulations. Bypassing the appellate courts and sending appeals straight to the Supreme Court, which is controlled by five conservative-leaning justices, would expedite case resolutions by months or perhaps even years.
“We believe this is a constitutional measure which will provide prompt resolution of disputes and prevent frivolous lawsuits from stonewalling thousands of good-paying jobs,” Walker spokesman Tom Evenson said.
But critics say the measure unfairly tilts the playing field toward Foxconn. Janine Geske, a Marquette University law professor and former Wisconsin justice, said the language raises federal and state constitutional equal protection questions.
“It’s real bad policy,” she said. “That company will be treated differently. To have some sort of streamlined decision making for a particular party, really goes to the heart of a fair and independent judiciary. This is just bypassing the whole structure of how we do justice in the state of Wisconsin.”
Lester Pines, a Madison attorney who has challenged a number of GOP laws, predicted someone will sue over the language. One could argue it illegally bestows a benefit on a single private party and automatically staying rulings infringes on judges’ authority, he said.
Ed Fallone, another Marquette University law professor who ran unsuccessfully for the state Supreme Court in 2013, said the language indicates that GOP lawmakers expect the conservative justices will “bend over backward for Foxconn.” He said the provisions amounts to another black eye for a court still reeling from in-fighting between the conservatives and liberal-leaning justices Shirley Abrahamson and Ann Walsh Bradley.
Foxconn has proposed building a $10 billion facility to produce flat display panels in southeastern Wisconsin. The Taiwanese electronics giant has promised the plant could employ up to 13,000 people. In addition to the environmental exemptions, Walker’s incentives bill would give the company $2.85 billion in cash payments over 15 years and $1.35 billion in capital investment credits. The package would be the largest state tax break for a foreign corporation in U.S. history.
The state Assembly has already passed the incentives bill but will have to vote again to adopt the appeals changes. The Senate will have to approve an identical measure before Walker can sign it into law. Those votes are expected before the end of September.
The state Supreme Court could end up ruling on the changes if they become law, he said, but that doesn’t mean it’s a drop-kick win for Republicans. The court tends to frown on attempts to restrain its powers and doesn’t always follow political conventions, pointing to a 2016 ruling preserving Democratic state schools Superintendent Tony Evers’ authority over public schools.
The Foxconn bill comes as three candidates are vying to fill outgoing Justice Michael Gableman’s seat in the spring elections. Two are seen as liberal-leaning — Madison attorney Tim Burns and Milwaukee County Circuit Judge Rebecca Dallet — with Sauk County Circuit Judge Michael Screnock seen as conservative-leaning.
Burns called the appeals language “a speed pass” through the state judicial system for Foxconn. Dallet said changing the process for one company isn’t sensible. Screnock campaign spokesman Nathan Conrad said the judge feels it’s inappropriate to comment on legislation that hasn’t passed yet.