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Scott Walker's Revolution: The Sequel

Walker's Act 10 reforms of 2011 brought to a halt the endless rise of Wisconsin property tax, but Wisconsin's overall tax burden remains one of the highest in the country. In the sequel, Walker intends to actually start bringing tax rates down. Wisconsin's neighbor to the south, Illinois, recently had to raise income taxes 67% in order to ward off financial Armageddon, and it still can't pay its debts. But Wisconsin's income tax rates (top bracket taxed at 7.75%) are still higher than Illinois' (top bracket was taxed at 3% but now is at 5%). Taxing income deters economic activity. Walker did not specify who would get tax cuts, but the next Assembly speaker, Robin Vos, said that he hoped Wisconsin could trim income taxes for all taxpayers but give the greatest relief to the middle class. Lowering income taxes while maintaining the recently balanced state budget will be the challenge. Additional and badly needed cuts to the state budget will still be necessary.

It appears at first blush that there is nothing standing in the way of the Walker sequel. But there is one obstacle looming and it is a big one. Next April 2, the 4-3 conservative majority on the Wisconsin Supreme Court will hang in the balance. Conservative Justice Patience Drake Roggensack was elected to a 10-year term on the Supreme Court in 2003. She is up for reelection in April. In June of 2011, it was this 4-3 conservative majority which overturned an activist lower court's decision barring implementation of Act 10 on procedural grounds, revealing a sharp partisan divide and an all-out open battle between the members of the High Court over the Walker reforms.

Supreme Court Chief Justice Shirley Abrahamson wrote that justices hastily reached the decision and the majority “set forth their own version of facts without evidence. They should not engage in this disinformation.” Abrahamson also said a concurring opinion written by Justice David Prosser, a former Republican speaker of the Assembly, was “long on rhetoric and long on story-telling that appears to have a partisan slant.”

In September of 2012, liberal Dane County Circuit Court Judge Juan Colas struck down Gov. Scott Walker's collective bargaining law once again -- this time on constitutional grounds. The decision is ridiculous. Judge Colas broke down the decision into four rulings, the most significant being that -- despite precedent to the contrary -- certain sections of Act 10 violate “free speech, association and equal protection.” Namely, the law violated workers' constitutional rights by denying to union workers certain powers available to their nonunion counterparts. Colas essentially made the argument that because the government offers collective bargaining as a benefit to some employees, they cannot be required to give up a constitutional right to take advantage of that benefit. The Colas ruling will ultimately end up before the Wisconsin Supreme Court. Whoever controls the court will determine the fate of the successful reforms Walker has put into place.

It is also a given that any of Governor Walker's aggressive and common-sense reforms in the hopper for 2013 will also see the inside of the Wisconsin Supreme Court. I have argued cases before Justice Roggensack and she is experienced, fair, and well-reasoned, and has always adhered to judicial precedent. But she is conservative, and that means all bets are off. As a recent Wisconsin State Journal editorial suggested, the upcoming Supreme Court election will likely be yet another referendum on Act 10, rather than a contest decided by judicial experience, temperament, and independence.

There are several potential challengers for Roggensack's seat. Dane County Judge Maryann Sumi -- who originally struck down Act 10 -- is a likely candidate. So is Vince Megna, a radical lawyer known as the "King of Lemon Laws" -- who announced he would no longer represent Republicans and has been running a string of web videos since Republicans changed a consumer law which made it possible for lawyers to recover millions in attorney fees even though only a few thousands dollars in damages were awarded under Wisconsin's Lemon Law. Also considering a possible challenge to Roggensack is Marquette Law School professor Ed Fallone.

It seems that the upcoming Wisconsin Supreme Court election will be another scorched earth political rumble in Wisconsin. The fate of the entire Walker Revolution may hang in the balance. A state judge living in the fantasy world which is Madison has substituted his singular opinion for the collective will of Wisconsin voters. Again. And now a single Supreme Court election will likely determine the outcome of a conservative political reform movement which seeks to take root around the country.