Monday, September 28, 2009

The Best State Supreme Court Money Can Buy

In my humble but deadly accurate opinion (as my friend Steve would say), big business in Wisconsin has now purchased a couple seats on the State Supreme Court, and the impact is subtly being felt. A recent ruling by the highest court has made it easier for companies to enforce non-compete agreements.

The author of the ruling is the newest member of the court, Justice Gableman, who won his seat with money from Wisconsin Manufacturers and Commerce and highly misleading TV ads (which are still the subject of ethics review) referring to his opponent, a sitting Justice, Louis Butler, as “Loophole Louie”.

This recent ruling is a complicated legal decision, but in essence, it changes the landscape for those employees who enter into a covenant not to compete. If you’re not familiar with the concept, let me explain it in radio terms. When I worked for Mid-West Family Broadcast Group here in Madison, I signed a non-compete which said if I quit, I couldn’t go to work on air for any other radio station within sixty miles, for six months. Many professional sales people have similar agreements, so they don’t go to work for a competitor and take their accounts with them.

Non-competes are becoming less and less typical in many industries, because courts have been leery about keeping people from changing jobs or working in their chosen field. In some states, in some professions, companies have stopped forcing their employees to sign them, because the courts won’t enforce them.

It used to be in Wisconsin, if you challenged a non-compete and the court found something wrong or too restrictive about ANY part of the agreement, it could set aside the entire agreement and invalidate it. Now, with Justice Gableman’s piece of handiwork, finding something wrong with one part of a non-compete will NOT invalidate the entire agreement.

This ruling is good news for big business; bad news for employees.

Agreeing with Justice Gableman, of course, was Justice Ziegler - the woman I referred to during my on-air days as “The Gut-Check Judge”. She, too, was elected with money from Wisconsin Manufacturers and Commerce, and a tribunal decided she acted unethically in deciding circuit court cases involving her wealthy husband’s bank. She defended her unethical action by saying she did a “gut-check” to see if there was a conflict…but, of course, never found a conflict of interest.

Dissenting on the non-compete ruling were Chief Justice Abrahamson, and Justice Bradley, who concurred in part and dissented in part with the ruling. Full disclosure: I was a financial contributor and volunteer assistant with Chief Justice Abrahamson’s successful re-election campaign earlier this year.

There is an active debate in our state right now about whether Supreme Court Justices should be elected or appointed. That’s a discussion for a different day. What this recent ruling about non-competes says to me, is that big business is reaping the benefits of buying a couple seats on our state’s highest court.

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