Below is the text of a public letter released Monday by Madison Atty. Lester Pines:
Recently I reviewed the June 26, 2012 application, submitted by Rebecca St. John, that convinced Governor Scott Walker to appoint her as a Dane County circuit court judge.
In the application she says that many times circuit court judges ignore the rules and interpret statutes for the sake of “political expediency.” But another statement is the most troubling:
“According to the supreme court, all laws are to be sustained against a constitutional challenge unless they are unconstitutional beyond a reasonable doubt. Too often, circuit court judges pay merely lip service to this standard.” (St. John Application, p. 12)
In other words, she thinks that circuit judges blithely declare laws to be unconstitutional.
Judge St. John should name the circuit court judges and produce the cases decided by them that support her assertion.
I suspect that she will be unable to do so. I have litigated numerous constitutional challenges in circuit court and have never experienced a judge “merely paying lip service” to his or her legal obligations.
What is more likely is that Judge St. John made the statement to Governor Walker, who uses such misleading rhetoric to demonize the judiciary, as a “dog whistle” alert to let him know that she will support him and his legislative acolytes when their laws are challenged.
The most recent cases from Dane County in which the constitutionality of a statute was challenged that were finally decided prior to Judge St. John’s successful application for appointment are:
• League of Women Voters Educational Fund, Inc. v Walker where Judge Richard Niess determined that the Voter ID law was unconstitutional;
• McConkey v Van Hollen where the constitutionality of the manner in which the Marriage Amendment was submitted to the voters. Judge Niess held that the Legislature had acted constitutionally;
• Appling v Doyle in which a group of citizens challenged the constitutionality of the Domestic Partners Law. Judge Daniel Moeser found the law to be constitutional;
• Dairyland Greyhound Park v Doyle which was a challenge to the constitutionality of certain Native American gaming compacts. Judge Richard Callaway found the compacts to be constitutional.
Three of those four circuit court decisions upheld the constitutionality of the challenged law.
Only the Voter ID law was declared unconstitutional. Does Judge St. John assert that Judge Niess “paid merely lip service” to his duties in the Voter ID case but followed the law in Marriage Amendment case?
Judicial elections are important. We elect judges to apply and interpret the law. Most importantly, judges function as a “check and balance” against the excesses of the legislative and executive branches. When judges do so, they are not “creating law” or “acting for political expediency” or “paying lip service” to their obligations.
To protect our rights, the judges of this state carefully consider challenges to the constitutionality of laws and strike them down when they must. No one, just to get appointed to the bench should, as Rebecca St. John did, suggest otherwise.