The Wisconsin Constitution grants circuit courts the power to “issue all writs necessary in aid of [their] jurisdiction.” Wis. Const. art. VII, § 8. And the Legislature has expressly authorized circuit courts to issue injunctions. Wis. Stat. §§ 813.01, 813.02. Yet, in two unsigned and unpublished procedural orders issued this past spring, the Supreme Court has—intentionally or not—stripped circuit courts of the power to enjoin enforcement of unconstitutional laws.

The supreme court issued these orders in two underlying lawsuits, both challenging legislative overreach in last fall’s lame-duck extraordinary session. (Full disclosure: I represented the plaintiffs in one of those suits.) In each case, a circuit court concluded that the laws passed in the December 2018 Extraordinary Session violated the Wisconsin Constitution and issued an injunction prohibiting their enforcement. In each case, the Legislature appealed the injunction and sought a stay that would prevent the injunction from taking effect during the appeal. In each case, the supreme court granted the Legislature’s request in an unsigned, unpublished procedural order issued before the case was resolved on the merits.

These two orders suggest a substantial shift in Wisconsin law governing injunctions against the enforcement of unconstitutional laws (as well as in the legal standard that applies to motions to stay an injunction pending appeal). Understanding that shift requires examining three questions:

  1. To what extent do these orders have precedential effect?
  2. How do these orders alter the standard for stays pending appeal?
  3. Do these orders prohibit circuit courts from enjoining unconstitutional laws?

I address all three questions in detail in a new essay published in the Wisconsin Law Review Forward. This blog post provides a brief synopsis of my conclusions.

First, the orders are unpublished and unsigned. But that does not mean they lack precedential effect. The Supreme Court issues per curiam opinions that create binding precedent. And both actions of the Court and the text of the orders themselves clearly suggest that the Justices—both those in the majority and those in the written dissents—understand the orders to be precedential. Given that, it is particularly problematic that the orders were not published in any official reporter or in any online legal research databases. They are now posted online by the Wisconsin Law Review.

Second, these orders significantly change the analysis that Wisconsin courts apply in determining whether to stay an injunction pending appeal.

Almost 25 years ago, the Supreme Court established that test in State v. Gudenschwager, 191 Wis. 2d 431, 529 N.W.2d 225 (1995) (per curiam). It did so by approving the court of appeals’ prior adoption of four factors used in federal courts. See id., 191 Wis. 2d at 440 (citing Leggett v. Leggett, 396 Wis. 2d 787 (Wis. Ct. App. 1986), which cites Reserve Mining Co. v. United States, 498 F.2d 1073 (8th Cir. 1974)). The Gudenschwager opinion then adopted a balancing approach that is not entirely consistent with the factors as it articulated them.

Where the application of the balancing test yielded clear results, the weaknesses of the Gudenschwager framework were easily papered over. But where, as in the extraordinary-session cases, all parties had substantial interests at stake, the balancing became more difficult. The Supreme Court’s recent orders modified all four Gudenschwager standards:

  • The requirement that a movant make “a strong showing it is likely to succeed on the merits of the appeal,” Gudenschwager, 191 Wis. 2d at 440, is now per se satisfied in any case where the appellate court will apply de novo review.
  • The requirement that the movant show it will, in the absence of a stay, suffer irreparable harm, is satisfied anytime the movant is connected with the Legislature and a court has interfered with the enforcement of a law adopted through the legislative process.
  • And the remaining requirements—“no substantial harm … to other interested parties” and “no harm to the public interest,” id.—are subsumed to the “irreparable harm of the first magnitude” that the Court now says the Legislature suffers when enforcement of a statute is enjoined.

All of this was done without recognition, much less consideration, of the public’s interest in ensuring that all branches of the state government act within the limited power granted them by the people in the Wisconsin Constitution.

Moreover, all of it was done without acknowledgement (at least by the unsigned majority portions of the orders) that the Supreme Court was significantly changing Wisconsin law. Such modifications should not be made sub silentio, and certainly not in unpublished orders that provide the public and the Bar no notice of how the law has changed.

Third and most importantly, the orders make clear that a circuit court commits legal error any time it declines to immediately stay its own injunction preventing enforcement of an unconstitutional law. This necessarily follows from the way the orders recast the Gudenschwager test, creating per se rules for the first two factors while largely discounting the third and fourth factors. But it means that the Supreme Court has, in practical terms, divested the circuit courts of power to issue such injunctions, notwithstanding the express grants of such power to the circuit courts in both the Constitution and the Chapter 813 of the Wisconsin Statutes.

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