February 10, 2009

Legislating from the grill

I heartily recommend WisPolitics.com's telephone interview with Jefferson County Circuit Judge Randy Koschnick, which is available as an .mp3 file at this link. In it, Koschnick continues scraping away at his signature (as in, only) campaign ramble about "activist" judges "legislating from the bench."

One of the examples he offers of same is Ferdon v. Wisconsin Patients Compensation Fund, a decision issued in April of 2005.

In Ferdon, a majority of the Wisconsin Supreme Court invalidated a State statute placing a cap on certain money damages in medical malpractice lawsuits on the grounds that it violated equal protection under the law as guaranteed by the Wisconsin constitution.

It's long been accepted that one of the roles of U.S. courts is to review the actions of the other two branches of government to ensure that they're complying with constitutional requirements and guarantees. If not, then down they go. Checks and balances, as many observers are inclined to refer to it.

(In this instance, the legislature responded to the court's considered guidance by enacting another, higher money damages limit.)

Koschnick actually complains that Ferdon is representative of "activism" and "legislating from the bench" because the State constitution doesn't say anything about medical malpractice.*

He then goes on to compare the legislative with the judicial branch, suggesting that the legislature is preeminent among equals by noting astutely that it's comprised of the people's representatives:
The Wisconsin constitution doesn't talk about malpractice caps anywhere. I mean, that is clearly judicial activism. The court is substituting its judgment for the judgment of the legislature. In effect, the court is stealing power from the legislature and stealing power from the people. It is not allowing the people's policy decision as enacted by the majority of our two houses to stand.
He doesn't say why the legislature is preeminent, probably because the three branches of government share the people's power; no one branch is just assumed to be preeminent. They play different roles.

Given that Wisconsin elects its judges, isn't the Supreme Court also comprised of the people's representatives? Of course it is.

And wasn't Ferdon a majority decision, in exactly the same way as was the majority decision of the legislature to impose an unconstitutional cap on certain malpractice awards? Of course it was.

And given that Judge Koschnick himself is running a political campaign to gain a seat on the Supreme Court and is relying on the will of the people to put him in it, how is the power he seeks any different substantively from the power of the legislature he claims is preeminent? After all, he's running as a representative of the people.

Surely not just because he says so. That would simply be "imposing his personal philosophy" on the function of government, as he puts it.

* Judge Koschnick also describes the burden of proof beyond a reasonable doubt as a constitutional "right," but I can't seem to locate any language to that effect in the Constitution either.

More later ...


Terrence Berres said...

In the meantime, see David Bernstein at The Volokh Conspiracy on this Remarkably Illogical Wisconsin Supreme Court Opinion.

Brett said...

did you see that the most recent act of "judicial activism" has come from the federal courts, where the Eastern District of Wisconsin held that Wisconsin's minimum gas mark up law is unconstitutional. Koschnick must be shocked, as nothing in the U.S. Constitution talks about "minimum mark ups." Yet another example of a judiciary run amuck. Someone turn on the judicial conservative bat sign...Wisconsin needs nonactivist help.