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Nonpartisan Attorneys Say Part Of Foxconn Law Could Be Unconstitutional

Law Governing Judicial Process For Foxconn Could Face Court Challenge

Foxconn podium
David Cole/WPR

Lawyers in the state Legislature’s nonpartisan legal office say part of the $3 billion incentives package for Taiwanese tech giant Foxconn passed by lawmakers last week may be unconstitutional.

The incentives package, which was signed into law by Gov. Scott Walker on Monday, includes language that creates a unique judicial process for legal challenges involving Foxconn.

Under the provision, decisions in those cases by circuit court judges would be immediately stayed, or put on hold, if an appeal is filed to a higher court. The law also creates an expedited process for the state Supreme Court to take up cases involving Foxconn, and requires them to give those cases preference.

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“It appears that certain aspects of that appellate procedure could be subject to challenge,” senior staff attorneys for the Wisconsin Legislative Council wrote in the memo.

A challenge to the law would center on whether it constitutes the Legislature infringing on judicial powers or unduly burdens or interferes with the judicial branch of government.

The memo was requested by Senate Minority Leader Jennifer Shilling, D-La Crosse, who said the law erodes public trust in courts.

“We should not be giving a foreign corporation preferential treatment in our state courts,” Shilling said in a statement.

Democrats also voiced opposition to the language as the bill was moving through the lawmaking process earlier this month.

Walker’s office said on Wednesday the governor is confident the law would be found constitutional, if challenged in court.

“We believe this is a constitutional measure which will provide prompt resolution of disputes and prevent frivolous lawsuits from stonewalling thousands of good-paying jobs,” said spokesman Tom Evenson.

Wisconsin Attorney General Brad Schimel’s office also stood behind the new law.

“(The state Department of Justice) is confident that the portion of the Foxconn bill related to the courts will pass constitutional muster,” said spokesman Johnny Koremenos.

A final contract with Foxconn is expected to be approved by the Wisconsin Economic Development Corporation later this month.

The manufacturer’s southeastern Wisconsin facility is projected to be operational in 2020.

Editor’s Note: This story was updated on September 20, 2017, with original reporting from WPR.

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