Friday, March 11, 2011

Kathleen's Swan Song? Falk files suit. More than a political act?

Interim Dane County Executive Kathleen Falk (a UW law school classmate who was much smarter than me. But that is almost damning by faint praise)

Interim Dane County Executive Kathleen Falk directed the county's Corporation Counsel to file a lawsuit challenging the validity of SB/AB-11 Budget Adjustment Bill, the stripped down version of the Budget Repair Bill (BRB) "passed" by the Senate and Assembly over the past two days. Here are the pleadings filed by the County, including a complaint, a motion for a temporary restraining order directing the Secretary of State to refrain from "publication" of the bill, without which it does not become law.

The key part to read is the brief in support of the injunctive relief, which begins about 16 pages into the .pdf document. The argument on why the bill is invalid is in section B of the brief, entitled "There is Reasonable Probability that Plaintiffs will Succeed on the Merits." (Being able to preliminarily show that upon a full judicial hearing into the facts the plaintiff will likely prevail is one of the standards for obtaining injunctive relief in advance of the full hearing.) Section B runs from pages 11-20 of the brief.

Key arguments:

1.  Under Article VIII, section 8 of the Wisconsin Constitution, bills having direct fiscal impact require a quorum of three-fifths of the legislators in each body when adopted. The fiscal measures were not all stripped out of the BRB, and since there wasn't the necessary quorum of three-fifths of the Senate present when the bill was considered and passed on an 18-1 vote on Wednesday evening.

2. The bill did not have "fiscal estimates" from the Legislative Reference Bureau required by statute.

3. Assuming for purposes of argument that the bill had no fiscal impact, it should not have been dealt with in a special session of the Legislature (rather than in a regularly calendered legislative session), as the governor had specifically called the special session to deal with an "economic emergency."   This is termed a constitutional violation in the brief, but it seems a stretch.

4. There was inadequate notice to the public that the modified bill would be taken up.

5. The Senate Parlor, where the conference committee met, was too small to meet statutory requirements that the meeting be "reasonably accessible" to the public.

6. The Wisconsin Legislature's Joint Rule 3 was violated. Under that rule, a conference committee can only meet and act when two varying versions of a law have been passed by both houses, in order to try to reconcile the versions. The Senate never passed a version of AB-11, the BRB, because of the Dem14 being on vacation in beautiful northern Illinois.

Dane County's brief was seemingly devoid of any case authority for Wisconsin courts having the power to declare a legislative enactment invalid based on the legislature's failure to follow its own rules or statutes on the legislative process. I found that odd, so went searching for authority. There is at least one Wisconsin Supreme Court case I located that said that unless the failure to follow legislative operating rules or procedures set out by statute rises to the level of a constitutional violation, the courts aren't going to step in and undo the work of the legislature.  This rule derives from the good old "separate but equal" branches of government concept. The case, State ex rel. LaFollette v. Stitt, 114 Wis.2d 358, 338 N.W.2d 684 (1968), says this:

"The respondents argue that this court has, on at least one occasion, deviated from the general rule that courts have no authority to invalidate legislation on the ground of legislative noncompliance with procedural statutes. . . . We hold that we will not invalidate a legislative action unless the legislative procedures or statute itself constitutes a deprivation of constitutionally guaranteed rights. . . . Because there is no claim here that the legislature's failure to comply with sec. 13.49 and refer A.B. 104 to the joint survey committee on debt management before passage amounts to a constitutional violation or deprivation, we will not further consider the issue of the validity of Act 3's enactment." 

Given the decision in State ex rel. LaFollette v. Stitt, it would seem to me that the only really colorable argument for the county is the quorum argument (No. 1 above) brought under the Wisconsin Constitution.

The case has been initially assigned to Judge Amy Smith, a Doyle appointee to the bench in 2009. Judge Smith was a Dane County DA, and an Assistant Attorney General before her appointment to the bench.

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