By now, anyone following Wisconsin politics probably has some opinion about whether the state should be handing out $3,000,000,000 to a Taiwanese corporation for the promise of some jobs. If you support the plan, you’ll probably say “It’s going to be 13,000 jobs!” If you’re not a supporter, you might point out that the number Foxconn promised is closer to 3000.

My take on the hand-out, in brief, is that putting $3 billion on one horse is irresponsible. We could more effectively grow our economy by investing in the university system to draw talent to the state; people who will start businesses or bolster the companies that might create jobs.

As Steven Verburg points out, once the $3 billion has been paid out and thousands are working there, the state will have that much less leverage when it comes to enforcing air and water quality standards for the 25 years it will take for the state to see a net return on that money.

That’s assuming that we’ll have a DNR inclined to enforce environmental standards. Cathy Stepp recently left her position at the DNR (with a lax record of allowing manure from CAFOs into the water supply) to join the EPA, with the likely goal of making that agency less effective. In the short term, Scott Walker will get to appoint someone even less qualified.

Yet, there’s more to the Foxconn package that makes it even worse.

Before we get to the bizarre things that have been tacked on, we need to be familiar with Wisconsin’s judiciary hierarchy:

Wisconsin State Judiciary
Circuit Court: 249 judges, with jurisdiction by county (mostly)
Court of Appeals: 16 judges, with jurisdiction by district (1/4 of the state)
Supreme Court: 7 justices, with statewide jurisdiction
All publicly elected.

The Right to “Super-Appeal”

A prevision was just added to the Foxconn incentive bill to allow Foxconn to appeal any lawsuit directly to Wisconsin’s Supreme Court, skipping the Court of Appeals.
This exclusive right to “super-appeal” also puts a stay on the lower court’s ruling. That means even if the Circuit Court decided against Foxconn, they don’t have to comply unless the Supreme Court takes the case and rules against them. This puts the burden on the Supreme Court to reinforce any Circuit Court rulings against Foxconn.

A specific corporation will be explicitly named in law as having rights above and beyond any other Wisconsin companies or any of Wisconsin’s human beings. This is not normal.

We don’t know yet what the Wisconsin Supreme Court thinks of having their docket be determined by Foxconn. But we do know the Wisconsin Supreme Court no longer make their deliberations public. Nor to the the publicly-elected justices recuse themselves when a case involves a campaign donor.

In other words, the highest court in the state is up for bid. Foxconn has a free pass to skip the lower courts, giving them extraordinary power. If a citizen, another company, or perhaps even the state of Wisconsin itself ends up in court against Foxconn, they’ve probably already lost.

Here’s how it plays out: let’s say Foxconn takes billions of gallons of water from Lake Michigan and dumps it back in with all sorts of chemicals added. Maybe the DNR sues. A circuit court judge tells Foxconn to stop. Foxconn appeals, and gets to keep doing what they want while waiting for the Supreme Court to take the case.

And, maybe this isn’t Foxconn’s first appeal. Maybe they’ve filled up the Supreme Court’s docket for the next several years. Or maybe the justices handle the extra caseload by changing their rules, so that they don’t need to have in-person hearings and deliberation, they can just submit their verdict and move on.
Yup. That’s a broken system.

That’s why we need to make it clear to our representatives and state senators, our neighbors, and our media that this provision threatens the independence of each branch of government.That’s not a partisan concern.

And this underlines the importance of the Supreme Court elections. Tim Burns and Rebecca Dallet have already announced their candidacy for the next election.
We need to pay attention to lower court elections as well — in the Court of Appeals, Dane County is grouped with everything west of Dodge and south of Clark County. And Dane County alone has 17 elected circuit court justices. If you search news for Dane County Circuit Court, you can get a sense of the issues they rule on and how consequential their decisions are.