A Wisconsin appellate court is asking the state Supreme Court to consider Attorney General JB Van Hollen's appeal of last Friday's order halting implementation of Governor Walker's [3] union-busting bill. Because the appeal raises significant issues the Wisconsin Supreme Court would review on appeal, the court believes judicial efficiency warrants fast-tracking the case. This places Justice David Prosser in an awkward position.

As CMD reported [4] earlier this week, the Attorney General filed an appeal of Judge Maryann Sumi's order halting the implementation of Walker's bill on grounds it passed in violation of state Open Meetings laws. The appeal claimed the decision violated the separation of powers between the court and legislature. The Court of Appeals is now offering two parts of that appeal to the state's highest court.

Two Questions Certified for Supreme Court Review

In its order [5], the Court of Appeals certified two questions for Supreme Court review. The first essentially asks whether the Open Meetings law protects a constitutional interest, in which case a court can review and void legislative violations of that law. The second question is whether that review can take place before a bill is published and becomes law, or whether consideration must wait until the legislative process is completed.

If the Open Meetings Law Protects Constitutional Rights, Violations Are Subject to Judicial Review

The Wisconsin Supreme Court has held that courts cannot invalidate laws for legislative violations of "procedural" statutes, unless the violation "constitutes a deprivation of constitutionally guaranteed rights." When there is ambiguity as to whether a statute is "merely procedural" or furthering constitutional directives, the state Supreme Court has found that the "weighty public policies of notice and transparency in government" can "tip the scale" in favor of finding a legislative violation subject to judicial review.

The District Attorney notes that the Open Meetings law expressly relies on Article IV, Section 10 of the Wisconsin Constitution, which requires that the doors of each legislative house remain open (except when the public welfare requires secrecy). Because of this, the Open Meetings law may be construed as protecting a constitutional right, in which case the legislature's violation may be reviewed and remedied by a court to protect the underlying constitutional interests.

Presumptions Against Interference with the Legislative Process May Not Apply to Open Meetings Laws

The next question is whether that review can only happen after a bill becomes law, or whether Judge Sumi's order halting publication was an impermissible interference with the legislative process. A Wisconsin Supreme Court case from 1943 established that "if a court can intervene and prohibit the publication of an act . . . it invades the constitutional power of the legislature to declare what shall become law." However, the Open Meetings law may be an exception to the rule. Not only did the legislature expressly authorize the Open Meetings law to apply to itself, it also provided a range of remedies for enforcement, including injunctions.

Prosser in a Prickly Place

The election between incumbent Supreme Court Justice David Prosser and challenger JoAnne Kloppenburg has been turned into a referendum on Governor Walker [6], and deciding whether to uphold Walker's law places Prosser in an awkward position.

Walker opponents may consider a vote striking down Judge Sumi's order as proof of partisanship. On the other hand, a vote upholding the injunction may be perceived as a politically-motivated effort to distance himself from Walker and save his seat.

However, Justice Prosser may be able to avoid this vote altogether. The state Supreme Court could decline to take the case until the Court of Appeals reaches a decision, or Governor Walker could call a special session and the legislature could hold a new vote with proper notice (making the whole controversy moot). But Prosser may have an even easier out -- as a state representative in 1983, he filed an amicus brief in one of the state supreme court cases that are key to this decision, State Ex. Rel. LaFollette v. Stitt. The decision suggests that Prosser's brief was more concerned with delegation of powers than judicial review of procedural violations, but there may be enough for Justice Prosser to assert he cannot be impartial and must recuse himself. While Wisconsin Supreme Court justices have had a long aversion to recusal, Justice Prosser may finally buck the trend.