Protasiewicz
MADISON, Wis. - A brief period of harmony on the tumultuous Wisconsin Supreme Court must have heavyweight, out-of-state Democrat donors wondering what they spent all that money on.
The two most-expensive statewide judicial races in the country's history resulted in a 4-3 liberal majority on the court, but those liberals have elected not to hear Democrats' pleas that congressional lines be redrawn.
Democrats felt that considering Wisconsin is a swing state, something must be done to cure the 6-2 edge Republicans have in the state's U.S. House of Representatives seats. The lines must be unfair, they said, if there could be that kind of discrepancy between the state's voting history and the GOP's performance in House elections.
But the justices declined to hear their case, somewhat shockingly. Doing so would've paved the way for two GOP-held districts to face tougher roads to re-election and possibly helped Dems take the House, which is currently a 220-212 Republican majority.
The congressional lines were a rallying cry for fundraisers for the campaigns of current liberal justices Janet Protasiewicz and Susan Crawford, who were elected in 2023 and 2025, respectively.
Even Wisconsin House Minority Leader Hakeem Jeffries opened his checkbook, giving Crawford $18,000 before her election this year. He said prior to Crawford's election that review of the maps was possible, "if you have an enlightened supreme court."
The June 25 decision came eight days after a unanimous court upheld the power of the state Attorney General's Office - led currently by Democrat Josh Kaul - to authorize settlements in lawsuits and enforcement actions, rejecting arguments only legislators can authorize matters involving state funds.
But the good feelings on the court didn't spread to another case, decided June 24. At issue is the state's Spills Act, which requires companies to report to the Department of Natural Resources any spill of a "hazardous" substance.
A dry cleaner - Leather Rich Inc. - had prepared to sell in 2018 but the owner found the property contaminated. It reported it to the DNR and applied for a broad liability exemption but only received a partial exemption because of the presence of PFAS.
PFAS are chemicals used in firefighting foam and various consumer products. They are dubbed "forever chemicals" because they persist in the human body, but it is disputed what kind of effect they actually have. Some claim they cause cancers, others say there is a lack of definitive scientific research.
The partial exemption meant Leather Rich would have to remediate any contamination. The DNR said a broad liability exemption would have put taxpayers on the hook for those costs.
DNR said PFAS were hazardous but did so without a formal rulemaking progress, Wisconsin Manufacturers and Commerce argued before the state Supreme Court. Leather Rich's owner has spent $300,000 on her fight but seven years later, she is unable to sell the property.
A trial court ruled against the DNR, finding its regulation of emerging contaminants like PFAS as an invalid, unpromulgated rule. An appeals court agreed, but five members of the Supreme Court reversed, despite an amicus brief from state lawmakers hoping for otherwise.
That brief says Wisconsin's government needs to adhere to the state's Administrative Procedure Act in order to allow the people to protect their right to notice of laws that will be enforced against them.
"(W)hen regulators wield their wide-ranging power to protect our air, water and soil, they may not penalize anyone for failing to meet a requirement not already codified in a statute or rule," that brief says.
"Here, the Spills Law does not clearly, openly, directly or exactly provide that (PFAS) - at specified exact concentrations or in specified exact combinations - are 'hazardous substance[s]."
Justice Protasiewicz wrote the majority opinion, after the DNR argued making rules for all emerging contaminants would grind its response to spills to a halt.
"(T)he DNR has explicit authority to enforce a threshold for reporting the discharge of hazardous substances," she wrote.
WMC said businesses will be left in the dark as to what spills must be reported while the prospect of severe penalties hangs over them.
"Businesses and homeowners are left to guess what's hazardous, and if they're wrong, they face crushing fines and endless, costly litigation," WMC executive vice president of government relations Scott Manley said.
As has become the norm, conservative justice Rebecca Grassl Bradley took her liberal colleagues to task in a dissenting opinion. Justice Annette Ziegler joined the dissent, which claimed people are now left "at the mercy of unelected bureaucrats empowered not only to enforce the rules, but to make them."
"The DNR created a policy, adopted an interpretation of a statute, and imposed standards under which apparently any detectable level of PFAS would trigger reporting and remediation obligations under the law," she added.
"The DNR binds all property owners in Wisconsin to comply and subjects them to civil penalties if they don't."
Liberals have expanded executive power in a dangerous way, Grassl Bradley wrote.
"Because the majority's decision in this case imperils the People's liberty, I dissent," she concluded.
Grassl Bradley has been an outspoken critic of the majority, filing dissenting opinions in key cases that accuse the liberals of replacing the law with their own ideologies.
She accused liberals of forcing their political agenda and ignoring the rule of law in a case over election drop boxes. In 2023, she called the result of a case over fees for electronic medical records "tyranny."
Also that year, Ziegler accused liberals of a power grab, calling them "rogue justices."
In another case, the liberals overturned a decision a then-conservative-led Supreme Court had issued two years earlier. Democrats said the law allows absentee voters to put their votes in ballot drop boxes, rather than return them in the mail or in person.
The decision went against the GOP majority in the legislature, which said the law forbids drop boxes. Democrat Gov. Tony Evers intervened and urged the liberals to overrule the previous ruling, which they did.
"The majority again forsakes the rule of law in an attempt to advance its political agenda," Grassl Bradley wrote. "The majority began this term by tossing the (state) legislative maps adopted by this court... for the sole purpose of facilitating 'the redistribution of political power in the Wisconsin legislature.'
"The majority ends the term by loosening the legislature's regulations governing the privilege of absentee voting in the hopes of tipping the scales in future elections."
