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August 23, 2019

7/13/2019 7:30:00 AM
Bradley becomes a concurring but fiery justice
In defense of constitution, jurist takes on the administrative state

Richard Moore
Investigative Reporter


Rebecca Grassl Bradley, the Wisconsin Supreme Court justice appointed to her seat by Gov. Scott Walker in 2015 and elected to a 10-year term in 2016, has in her short tenure become not only a leader on the high court but a conservative who is not afraid to take issue with mainstream orthodoxy, especially if it's coming from other conservatives.

She's out front in court opinions, for sure: In the 2017-18 term of the court, according to an analysis by attorney Anne-Louise Mittal of Foley & Lardner, Bradley authored the most opinions overall with 27.

Even more important than being assigned to write the majority opinion, Bradley, along with justice Daniel Kelly, authored the most concurring opinions - a separate opinion that agrees with the majority but with different or additional reasoning - 12 in the 2017-18 term alone.

None of which is to say Bradley doesn't vote with the conservative majority most of the time. She does, though she has done so with notable departures.

Still, Bradley has used some of those concurrences to take sharp issue with the philosophical underpinning of the conservative majority's thinking, which on occasion she has viewed has insufficiently skeptical of big government, and to lay out the principles of what she sees as a sounder brand of constitutional adherence.

And while justice Daniel Kelly's philosophy and opinions closely align with those of Bradley, his written opinions lack the intense, blunt rhetoric that Bradley employs and that could arguably be called reprimands of more establishment conservatism.

Nowhere was that trend more evident than in her most recent concurrence in another significant decision, a 4-2 ruling that stripped the state Department of Public Instruction of its ability to write administrative rules on its own.

The high court conservative majority put a stop to it.

But in making what she concurred was the correct call, Bradley thought the majority lent too much credence to the liberal idea that a massive administrative state is needed to make government run efficiently. In fact, Bradley not only questioned whether our republic was supposed to run efficiently - certainly that was not the objective of the Founders, she opined - and whether the delegation of authority to the administrative state was necessary, she cautioned about the hazards of doing so.

While Bradley acknowledged that the majority said the ability of state agencies to write administrative rules is subordinate to the Legislature, and is a power delegated by the Legislature, she also took note of and targeted the majority's embrace of previous Supreme Court rulings: "We have long recognized that 'the delegation of the power to make rules and effectively administer a given policy is a necessary ingredient of an efficiently functioning government,'" the majority stated.

Bradley spent 13 pages contesting that idea in a concurrence that the majority opinion labeled a "dogmatic exposition on the merits, or lack thereof, of administrative agencies."

Hitting the fiery button, Bradley counterpunched at that interpretation of her concurrence: "I agree with the majority that the issues in this case do not require an 'exposition' - 'dogmatic' or otherwise - of the constitutional legitimacy of the administrative state. I write in response to the majority's endorsement of the necessity of delegating legislative power to administrative agencies."

On the larger question, Bradley disagreed that "the delegation of the power to make rules and effectively administer a given policy is a necessary ingredient of an efficiently functioning government."

Indeed, Bradley advised, there was an inherent danger in such delegation of power.

"The concentration of power within an administrative leviathan clashes with the constitutional allocation of power among the elected and accountable branches of government at the expense of individual liberty," she wrote. "Although this case does not involve a challenge to the constitutionality of legislative delegations of power to administrative agencies, I encourage the court to be mindful of the structural separation of powers and the safeguards it employs to preserve the rule of law."

Indeed, Bradley continued, the majority restated discredited principles, disregarding the incompatibility of "the system of bureaucratic rule that took root in the Progressive era and now reaches into virtually every realm of American life" with the constitution's "deliberate calibration of incentives and control between the branches" reflected in the structural separation of powers.

"Underlying the movement toward a burgeoning administrative state was the governing class's sneering contempt for the people who elect its members, along with impatience at any resistance of the people to the views of the enlightened," she wrote.

The reality is, Bradley wrote, the concept of the administrative state is nonexistent in either the United States or Wisconsin constitutions.

"In facilitating the vast expansion of the administrative state, the legislative and executive branches transferred power from the people's elected representatives and elected executives, bestowing it upon unelected and unaccountable bureaucrats, thereby jeopardizing the constitution's safeguards against the tyrannical concentration of power," she wrote.

Rather than extolling the necessity of the administrative behemoth in Wisconsin, Bradley wrote, the court should "glance at the constitution to see what it says about how [governmental] authority must be exercised and by whom."



Academic freedom

In one of the most controversial decisions of the 2017-18 term, McAdams v. Marquette University, Bradley also went her separate way in another particularly impassioned concurrence, this time not because she disagreed with the majority's reasoning but because, she wrote, she believed academic freedom and free speech are increasingly imperiled in America and within the microcosm of the college campus.

A broader discussion of the significance and meaning of academic freedom was warranted, Bradley wrote, and she took the opportunity the case offered to do so.

In the 4-2 decision, the high court ruled that Marquette University professor John McAdams was wrongly suspended after he took to his blog to criticize a graduate student, using her name in the process.

Specifically, McAdams said he called out a graduate student instructor's "misconduct" in an incident in which she allegedly refused to allow a class discussion of gay rights because "everybody agrees on this, and there is no need to discuss it."

McAdams sued the private university for breach of contract, asserting that the contract guaranteed him the right to engage in activity protected by either the doctrine of academic freedom or the U.S. constitution.

"The undisputed facts show that the University breached its contract with Dr. McAdams when it suspended him for engaging in activity protected by the contract's guarantee of academic freedom," wrote justice Daniel Kelly in the majority opinion.

But Bradley said the case was about a lot more than a breach of contract dispute.

"In this unprecedented dispute between a university and a professor, academic freedom was put on trial," Bradley wrote. "Would the sacred 'right of faculty members to speak as citizens - that is, 'to address the larger community with regard to any matter of social, political, economic or other interest without institutional discipline or restraint' - succumb to the dominant academic culture of micro-aggressions, trigger warnings and safe spaces that seeks to silence unpopular speech by deceptively recasting it as violence?"

In such a battle, Bradley wrote, only one could prevail, for academic freedom cannot coexist with Orwellian speech police.

"Academic freedom means nothing if faculty is forced to self-censor in fear of offending the unforeseen and ever-evolving sensitivities of adversaries demanding retribution," she wrote.

Indeed, Bradley wrote later, it is the expression of opinions divergent from what is currently politically correct that needs protection under the doctrine of academic freedom.

"If academic freedom does not protect dissident viewpoints, the doctrine is worthless," she wrote.

Academic freedom is deeply entrenched in the history of the country and its college campuses, Bradley concluded.

"Universities are unique places for intellectual growth, where both students and professors can 'follow truth wherever it may lead,'" she wrote, quoting Thomas Jefferson. "Those who engage in the pursuit of truth, who propound ideas and challenge others, must enjoy the freedom to speak on matters of public concern without the sword of Damocles menacing their discourse."

Suppression of viewpoints confronting the current cultural orthodoxy would surely lead to academic stagnation and imperil the future of America, Bradley concluded.

"If institutional silencing of non-majority viewpoints replaces the search for truth, higher education becomes nothing more than an echo chamber of familiar and recycled perspectives, and the dialectic dies with it," she wrote. "The court ensures the dialectic is alive and well in Wisconsin, and academic freedom along with it. I join the majority opinion in full."



State v. Kerr

While Bradley has more often than not sided with law enforcement in Fourth Amendment cases, she has on occasion reminded her fellow conservatives that Fourth Amendment protections are important.

In a 2018 case, State v. Webb, Bradley broke completely with the other conservatives on the bench and sided with liberal justices Shirley Abrahamson and Anne Walsh Bradley (no relation) in a 4-3 decision in which a man sought suppression of evidence used to convict him on a drug charge.

The case stemmed from the arrest of Christopher Kerr on an arrest warrant issued after he failed to pay a municipal fine. Kerr had failed to appear for a citation for disorderly conduct, and the judge entered a default judgment, giving him 60 days to pay the fine.

After 60 days, an Ashland County circuit judge issued a warrant to arrest and jail Kerr for 90 days, or until he paid the fine. However, though a person can be jailed for not paying a fine, state law requires that a hearing be held first to determine the person's ability to pay the fine. That did not happen before the arrest warrant was issued.

Not much later, according to the Supreme Court decision, two officers were dispatched to follow up on a 911 hang-up call from Kerr's residence in Bayfield County.

"En route, they were advised by dispatch that there was an outstanding arrest warrant for Kerr in Ashland County," the decision states. "When the officers arrived at Kerr's residence, they discovered that the 911 call was in error, but arrested Kerr pursuant to the arrest warrant. In conducting a search incident to arrest, the officers discovered methamphetamine in Kerr's pants pocket."

He was charged with possession, but Kerr wanted the evidence suppressed, arguing that his due process rights were violated because he was jailed without the issuing court first inquiring as to his ability to pay, without being given notice that his ability to pay was at issue, and without a meaningful opportunity to be heard, the Supreme Court decision stated.

"He argued that the warrant would not have been issued, and he would not have been arrested or searched incident to arrest, if he had been afforded due process in the forfeiture action," the court decision stated.

The Bayfield County judge had sided with Kerr, applying the so-called exclusionary rule. According to the circuit court's reasoning, suppression of evidence under the exclusionary rule - which prohibits the use of evidence obtained illegally and in violation of the Fourth Amendment right against unreasonable searches and seizures - was proper because in Wisconsin 'judicial integrity' is vital enough to justify exclusion of evidence when the issuing court's arrest warrant is invalid.

However, the Supreme Court reversed, saying the "exclusionary rule" applied only in cases where there was police misconduct, and the case did not involve such misconduct.

"We conclude that suppression is not appropriate because the sole purpose of the exclusionary rule is to deter police misconduct, and there is no police misconduct here," wrote justice Annette Ziegler for the majority. "Neither judicial integrity nor judicial error is a standalone basis for suppression under the exclusionary rule."

Bradley, in a dissent written separately from the two liberal justices, agreed about the exclusionary rule but said there was more to the matter than that. Even though the exclusionary rule did not apply, Bradley argued, statutes and case law still required the evidence to be suppressed because the warrant was null and void from the start.

The Wisconsin constitution, she wrote, guarantees the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures and provides that no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.

"For nearly a century, this court deemed unauthorized warrants to be void ab initio [meaning to be treated as invalid from the outset] and required any evidence recovered under such warrants to be suppressed, a rule this court reaffirmed just eight years ago," she wrote. "Instead of applying long-standing Wisconsin law, the majority allows the admission of evidence obtained under a warrant with no basis in the law - a warrant the state concedes was void ab initio and which caused the unlawful arrest and search of a Wisconsin citizen."

Notably, Bradley wrote, the invalid warrant for Christopher Kerr's arrest stemmed from an unpaid municipal citation for an ordinance violation - a civil, not a criminal offense. What's more, Bradley wrote, under the state constitution, statutes, and longstanding case law, the evidence in the case should be suppressed because it was obtained only as a result of an unlawful arrest warrant issued in violation of statutory procedures and Kerr's constitutional rights, whether or not there was police misconduct.

"Both parties agree that the warrant should not have issued because the circuit court failed to follow the statutory procedures required for issuing a valid warrant," she wrote. "The state argues that despite the statutory violation resulting in the unlawful search, the evidence is admissible because the exclusionary rule does not apply absent police misconduct, and everyone agrees the police did nothing wrong."

Bradley said she agreed that suppression under the exclusionary rule is limited to instances of police misconduct and the court should not extend its application, but, she wrote, the evidence should still be suppressed because of the illegal warrant.

Just two years earlier, Bradley wrote, she cautioned against judicial approval of governmental intrusion into the home in violation of a citizen's constitutional guarantee to be free from unreasonable searches and seizures.

Now, Bradley suggested, the majority's view is that illegal warrants are OK so long as the police don't engage in misconduct in executing them.

"The infringement in this case is perhaps more alarming because it was accomplished by law enforcement's blameless execution of a warrant that the judge issued on his own initiative and with no legal basis whatsoever; rather, the warrant was issued in violation of procedural preconditions set forth in the Wisconsin statutes," she wrote. "The majority minimizes the gravity of the judge's error by altogether ignoring it."

That Kerr was found with drugs should make no difference, Bradley wrote.

"Perhaps it is easy to acquiesce in the circuit court's infringement of constitutional rights when the defendant is found with an illegal drug in his pocket, but the majority's decision applies equally to the innocent citizens of Wisconsin who may be unlawfully arrested and searched under the guise of a warrant," she wrote.



Property rights

In another interesting case, Adams Outdoor Advertising v. City of Madison, Bradley departed from the court's majority opinion that the city of Madison did not engage in a taking of company property when it blocked the visibility of a billboard on the property.

In the case, Adams Outdoor Advertising argued that a property takings occurred because the city of Madison constructed a pedestrian bridge over a highway, thereby blocking visibility of one side of Adams's billboard.

According to Adams, the court decision summarized, the city took its property interest in its "vested rights in the legal nonconforming use" of its billboard, and a taking occurred because the city deprived it of all economically beneficial use of that side of its billboard.

The majority disagreed, saying a right to visibility of private property is not a protected property interest. But Bradley dissented, saying the majority allowed a taking of Adams Outdoor's real property by misapprehending the property interest to be a "right to visibility" rather than the permit for that side of the billboard.

The city of Madison, Bradley stated, treats each side of the billboard as separate real property by requiring an individual permit for each side.

"Adams Outdoor paid separate fees to secure the required permit for each billboard, it must pay advertising copy change fees per side when the content displayed on the billboard changes, and it is taxed separately for the west-facing and the east-facing billboard permit," she wrote. "Adams Outdoor owns the permits."

Takings law, properly applied, prevents unfair burdens from being imposed on a single property owner for a government project that will benefit the public as a whole, and that's just what happened in the case, Bradley wrote.

She further observed that the sign could not be moved because of its legal pre-existing status, and that losing the use of the billboard cost Adams $96,000 a year on an irregular parcel whose physical characteristics suggested that its only valuable use was to anchor signage.

"It is undisputed that the bridge over the Beltline Highway benefits the public as a whole," she wrote. "But, this public benefit forced Adams Outdoor to bear a heavy burden - the destruction of all economically viable use of its property. Moreover, Adams Outdoor cannot take any steps to mitigate its losses because its legal but non-conforming use status precludes Adams Outdoor from reconfiguring or moving the structure in order to restore the rentability of the west-facing billboard."

The bridge completely deprived Adams Outdoor of the only economically viable use (and therefore the entire value) of its west-facing billboard permit, Bradley concluded.

"As the owner of real property whose value the city wholly eliminated, Adams Outdoor is entitled to fair and just compensation," she wrote. "The majority permits the unconstitutional taking of private property without just compensation, thereby threatening the freedom of all private property owners in Wisconsin."



Great weight deference

Finally, the Supreme Court decided against giving the statutory imterpretations of state agencies great-weight deference.

While three conservative justices - Patience Roggensack, Annette Ziegler, and Michael Gableman - based their opinion on what they called non-constitutional, administrative reasons, Rebecca Bradley and Daniel Kelly (who wrote the lead opinion) rooted their beliefs in a document that would make the decision harder to overturn: the state constitution.

Kelly wrote: "When we distill our cases and two centuries of constitutional history to their essence, the result is a lodestar that leads us directly to the most central of our powers: 'No aspect of the judicial power is more fundamental than the judiciary's exclusive responsibility to exercise judgment in cases and controversies arising under the law.'"

The court, Kelly wrote and Bradley concurred, was leaving the deference doctrine behind because it was unsound in principle.

"It does not respect the separation of powers, gives insufficient consideration to the parties' due process interest in a neutral and independent judiciary, and 'risks perpetuating erroneous declarations of the law,'" the opinion stated, quoting Bradley in an earlier decision. " . . . Today, the core judicial power ceded by our deference doctrine returns to its constitutionally assigned residence. Henceforth, we will review an administrative agency's conclusions of law under the same standard we apply to a circuit court's conclusions of law - de novo."

In fact, in that earlier case, Operton v. Labor and Industry Review Commission, Bradley had already questioned the constitutionality of the doctrine of deference.

"The doctrine of deference to agencies' statutory interpretation is a judicial creation that circumvents the court's duty to say what the law is and risks perpetuating erroneous declarations of the law," she wrote.

She urged the court to "reconsider its decades-long abdication of this core judicial function."

Richard Moore is the author of the forthcoming "Storyfinding: From the Journey to the Story" and can be reached at richardmoorebooks.com.





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