The Court of Appeals has just issued this order, and certified both the Attorney General's Petition for Interlocutory Appeal of Judge Sumi's Temporary Restraining Order (TRO) of March 18, and the accompanying motion to have the TRO lifted to the Wisconsin Supreme Court pursuant to Wis. Stats. 809.61:
The supreme court may take jurisdiction of an appeal or other proceeding in the court of appeals upon certification by the court of appeals or upon the supreme court's own motion. The supreme court may refuse to take jurisdiction of an appeal or other proceeding certified to it by the court of appeals.
I had predicted that the Court of Appeals would act by last night or this morning to put the case into the hands of the Supreme Court for final resolution because of the important constitutional issues it presented. As the statute states, the Supreme Court is not obligated to act in response to the certification, and could throw it back into the Court of Appeals' lap to decide both the outstanding issues, but given the enormous public importance of this lawsuit, both for the power of the legislature to act unfettered by unconstitutional interference from a co-equal branch of government, and the importance of legislative compliance with the Open Meetings Law, the Supreme Court will not do that.
The Court of Appeal has certified the following two questions:
1. Whether striking down a legislative act - also known as voiding - is an available remedy for a violation of the Open Meetings Law by the legislature or a subunit thereof; and, if so,
2. Whether a court has the authority to enjoin the secretary of state's publication of an act before it becomes law.
The Court of Appeal's decision does a nice terse job of defining the legal issues in the case with reference to four separate Supreme Court opinions, two of which I have previously discussed here, here and here. I think the basic issue as it is framed by the Court of Appeals is whether the Open Meetings Law, by citing Article IV, Section 10 of the Wisconsin Constitution in its declaration of policy, see page 4 of the decision, was intended by the legislature to give a constitutional dimension to the law. One of the cases, Stitt, says that only if a legislative procedural screw-up rises to the level of a constitutional violation would the courts have the power to intervene and void the action. In Stitt, the Supreme Court said that the legislature's failure to follow an internal procedural rule that was not constitutionally mandated should be simply viewed as an ad hoc repeal of the legislative rule. That holding seems sensible.
If I were sitting on the Supreme Court (and being dense, and without the right temperament, I am clearly not qualified to be there) I would want to avoid ruling on this case in any way that conveys that I don't place great emphasis on the sanctity of the Open Meetings Law. That is the sort of decision that sends citizens, newspapers, and broadcast media types up the wall (and maybe taking to the ramparts again?). Can the action of Judge Sumi be overturned without expressly or implicitly saying that the Open Meetings Law violation is not important enough in this case to sustain what she did? I think it possibly can.
It seems to me that the Supreme Court can rule that the March 9 conference committee meeting and the conference committee resolution that flowed out of that meeting is voidable due to a violation of the Open Meetings Law, a law that has a constitutional dimension and is not merely procedural. But the court could then conclude that the Senate and Assembly can chose in their discretion to in essence revoke (to ad hoc repeal as Stitt put it) their rule that mandates a conference committee meeting first work out the differences between the two chambers on a single piece of legislation before each house can pass the same bill. Or the Court could say "we don't have to decide the Open Meetings Law violation, because even if the conference committee violated the law, the requirement that the bill (which both chambers unquestionably passed in the same form) first go through the conference committee is a procedural rule with no constitutional aspect to it." This theory would have to be based on concluding: (a) that the two chambers in their separate session meetings that passed the stripped down law handed up from the conference committee were lawfully noticed under the Open Meetings Law (or that no question about a violation in the proper noticing of the separate chamber meetings has been presented by DA Ozanne's complaint); or (b) that they didn't have to be so noticed. (I am sadly uninformed on this Open Meetings issue as it relates to the two chambers meeting in session to pass laws.) And I may be completely wet on this.
I am assuming that a goal of the Supreme Court will be to act on the matter quickly enough that if they conclude Judge Sumi was wrong in issuing her injunction they can lift the TRO in time for the Act to be published by tomorrow's deadline. I suspect they will go ahead and deal with the issue without requiring additional briefs, given the volume of briefing that has been done already.
I am now waffling on my prior endorsement of Judge Sumi's decision. She is still a smart and impartial judge though, regardless.