WI Attorney General Seeks Appeal of Decision Halting Union-Busting Bill

Submitted by Brendan Fischer on

Attorney General JB Van Hollen is seeking to appeal last Friday's order halting implementation of Governor Walker's union-busting bill. While the trial court found that the bill's rushed passage likely violated state Open Meetings laws, the Court of Appeals is being asked to consider whether that decision conflicted with separation of powers principles.

As CMD has reported, on March 18 Dane County Judge Maryann Sumi found that legislators had likely violated Open Meetings laws by providing inadequate notice for the March 9 Joint Conference Committee meeting and subsequent Senate vote that amended and passed Gov. Walker's controversial bill. In making her decision, Judge Sumi noted that the law states "any actions taken at a meeting of a governmental body held in violation [of Open Meetings law] are voidable," provided that the District Attorney brings the suit and the public interest in voiding the bill outweighs any public interest in upholding it. Sumi emphasized the Constitutionally-recognized public interest in ensuring open government, stating "we are entitled by law to free and open access to governmental meetings, and especially governmental meetings that lead to the resolution of very highly conflicted and controversial matters."

The Attorney General's motion to appeal asks the Court of Appeals to consider several questions, the most significant being whether Judge Sumi had jurisdiction to prevent a bill from becoming law, as opposed to voiding a law once it is enacted. This is an issue of separation of powers, or whether courts can interfere with the legislative process (as well as raising questions about when a controversy is ripe for suit). In an order issued March 21, the three-person Court of Appeals asked the District Attorney to prepare a brief responding to these issues by 4pm March 22. The Attorney General's motion also asserts that Secretary of State Doug LaFollette is immune from lawsuit under sovereign immunity, and that he cannot be restrained from performing a ministerial, statutory duty; that the legislators named as defendants are entitled to legislative immunity; that courts may not void legislative acts for failing to follow non-constitutional rules of process; that legislative rules, which may not have had a time requirement for notice, trump Open Meetings laws; and that a temporary restraining order may not have been the appropriate form of relief. The District Attorney has until the afternoon of Wednesday, March 23 to respond to these claims, and the Court will subsequently decide whether to grant the Attorney General's appeal.

While both chambers of the State Legislature passed the contested bill and Governor Walker has signed it, the bill does not become law until it is published by Secretary of State LaFollette. Judge Sumi's decision bars LaFollette from publication until a full hearing takes place on Tuesday, March 29; if the Court of Appeals grants the Attorney General's motion, it is expected to make a decision on whether to lift Sumi's order before that date.

Secretary of State LaFollette was the named defendant in the District Attorney's suit seeking the injunction, and is the named petitioner in the Attorney General's motion for appeal. However, LaFollette tells the Capitol Times that he was not consulted before the motion was filed. LaFollette, one of the few Democratic elected officials in the Wisconsin government and the state's longest-serving constitutional officer, has stated he will abide by Judge Sumi's order. CMD will have more on this story as it develops.

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Concerned Tax Payer replied on

Judge Sumi is a left wing political hack. The only requirement of a meeting during a special session, is that it is posted on the assembly and senate bulletin boards. It was. A rule, I might add, that was written by Democrats. That has got to be tough for the lefties to swallow. Judge Sumi should change her ruling to the constitutionally correct one, and then resign. She is a perfect example of why Ms. Kloppenburg is wrong for our highest court. Never let the constitution get in the way of creating your own laws. Concerned Tax Payer

Mutternich replied on

Or, on second thought, maybe he knows better: <blockquote>Despite Walker's faith in the conduct of fellow Wisconsin Republicans, his legal team is not contending that GOP legislators followed the law, but only that violations of that law be enforced more leniently. In its petition to the Supreme Court, not once does Walker's Administration argue that Republican legislators acted lawfully."</blockquote> https://www.prwatch.org/news/2011/04/10594/newsmax-interview-walker-misleads-administrations-legal-support-gop-legislators

Concerned Tax Payer replied on

Can you cite which part of the Open Meetings Law was violated? This is what Judge Sumi is using to block this law. It does not take a legal scholar to read, and understand, the rules in question. As previously stated, the rules on meeting notifications apply to regular sessions of the legislature. The rule that applys to legislative special sessions only require a posting on the legislative bulletin boards. Again, this rule was written by Democrats. You are choking on that one, aren't you. The Repulicans did this. The law was followed. It is not the Republicans fault that the runaway Democrats were not there to represent there districts. Maybe next year at this time, some of them won't be. Nor is it the Republicans fault that the rules were written the way they were.(by Dems.) What Judge Sumi did was to make up a delay to allow the Democrats and Unions to find a way to cover the fact that they got out flanked and out smarted by the Republicans. She created her own law to get the result she wanted. The ruling will not stand. Govenor Walker's legal team does not have to contend anything. It is up to the Democrats and Unions(same thing) to make thier case. Which, based on the law, they cannot do. Also, if you can only quote PR Watch articles to support your case, you need to read more widley. Govenor Walker, The middle class tax payers of this state stand with you! Concerned Tax Payer

Brendan Fischer replied on

Wis Stat 19.84(3): "Public notice of every meeting of a governmental body shall be given at least 24 hours prior to the commencement of such meeting unless for good cause such notice is impossible or impractical, in which case shorter notice may be given, but in no case may the notice be provided less than 2 hours in advance of the meeting." (it is undisputed that less than two hours notice was given for the meeting and vote) Wis Stat 19.87 Legislative meetings. "This subchapter shall apply to all meetings of the senate and assembly and the committees, sub- committees and other subunits thereof." There are four exceptions to 19.87, including part (2): "No provision of this subchapter which conflicts with a rule of the senate or assembly or joint rule of the legislature shall apply to a meeting conducted in compliance with such rule." The argument you want to make is not that Open Meetings laws do not apply to Special Sessions, but that legislative rules conflict with 19.84(4). The Senate and Assembly each have a rule that says: "notice of a committee meeting is not required other than posting on the legislative bulletin board, and a bulletin of committee hearings may not be published." Joint Rule 84(2) seems to incorporate these Senate and House rules and make them applicable to the Joint Committee. These legislative rules state that the only notice necessary is posting on the bulletin board. Note that there is no time frame in the rule, and arguably has more to do with the "form" of notice rather than its timing (clarifying, for example, that meetings do not need to be noticed via publication in the state newspaper or on a website). Certainly, 19.87(2) appears to give the legislature power to enact legislative rules that override the 24 hour (or 2 hour) notice required in Open Meetings laws. However, it is usually necessary for the legislature to be explicit if they are going to override a duly enacted statute-- for example, the rule could say "no advance notice is necessary" or "only one hour notice is required." Here, the legislative rule does not include any language referring to the timing of the notice, making it difficult to argue it conflicts with (and overrides) the Open Meetings law. And as Mutternich noted, Walker's legal team is arguing that violations of the Open Meetings law should not be punished by enjoining further implementation. They are not arguing that legislators followed the law.