Wednesday, March 16, 2011

Here Comes The (New) Judge!!

Judge Maryann Sumi

I previously posted on the outcome of the emergency hearing the County had before Judge Amy Smith, seeking to have the court issue a preliminary injunction barring Doug LaFollette from publishing the stripped down budget repair bill the Governor signed on March 11.  From CCAP entries, it appears that Madison Attorney Lester Pines appeared at this hearing on March 11 and told the court he had been hired by Madison Teachers, Inc. to act as an intervening party to also seek judicial relief preventing the law from becoming effective.   AAG Means asked the court to require MTI to go through the regular statutory process of filing a written motion to intervene.  All of this seemed a little rushed, but that was undoubtedly because the plaintiffs and MTI had a concern that the Secretary of State might publish the law lickety-split and it would then immediately go into effect unless later overturned by the courts.   In fact,  the matter was so rushed that the court and parties were put on notice a few days later via a letter from the clerk of court that the clerk’s office had permitted the lawsuit to be filed without the filing of the $164.50 filing fee.  (I don’t know anyone who has ever gotten away with that!  But since the Clerk works for the County he or she must have concluded the County was good for the fee.   And the clerk may have remembered who signs his or her paycheck.) 
At the hearing on March 11, Judge Smith had indicated that she might have a conflict of interest, or at least the appearance of a conflict, in that she had in the past worked closely with AFSCME and WSEU members in various state legal counsel positions.   She inquired of the parties if they felt that posed a problem and AAG Means, representing the state defendants essentially put it back onto Judge Smith, saying that if she felt she could be fair and impartial he didn’t have a concern.  With that discussion out of the way, the Court heard arguments on whether to grant the motion for a temporary injunction.  She allowed argument from Atty. Pines as a courtesy, though she had previously agreed that until he filed a motion to intervene that was granted by the court, MTI was not in the case.  The Judge then denied the motion for a preliminary injunction for the reasons I previously addressed in this earlier post.  After denying the preliminary injunction, Judge Smith set the case for a hearing on Wednesday, March 16, beginning at 9 a.m., and scheduled to go all day.
Judge Smith apparently alerted the parties on Monday the 14th that she wanted to have a status conference by telephone on Monday.  According to the clerk’s note on CCAP, Judge Smith told the parties that she discovered while reviewing the case over the weekend that one of the plaintiffs, county worker Shannon Maier (who was likely named as a plaintiff to put a human face on the plaintiffs), is an AFSCME representative. The judge told the parties she felt she needed to withdraw from the case (“recuse herself”) because she had previous dealings with WSEU and AFSCME representatives while she was deputy secretary of the state Department of Corrections and head of enforcement for the state Department of Natural Resources prior to assuming the bench.  Judge Smith filed a request for specific assignment of a new judge that same day and Judge Maryann Sumi drew the case.

Judge Sumi had a status conference with the counsel in the case yesterday and told them she was setting the matter over until March 18, when she could set aside the full day to hear the matter. She ordered the defendants to file their answer to the county’s complaint by the close of business on Thursday. She asked the defendants to promptly raise any jurisdictional issues they might have to the court’s ability to hear and decide the case. She informed the parties that she wanted to know of any parties wishing to seek intervention by 8:30 a.m. the day of the hearing.  Based on press reports, she also told the parties that she did not expect to rule from the bench on the 18th, nor did she expect to rule in the case before a week-long vacation she had planned for the week following.  She indicated she would be back at work on the 28th of March.  This means that in all likelihood the law will be published before the judge rules on its validity.  The deadline for the Secretary of State to publish the law is March 25. 
Later today the County filed a motion to dismiss Senator Mike Ellis, Senator Scott Fitzgerald, Representative Jeff Fitzgerald, and Representative Scott Suder and to file an amended complaint that instead added DOA Secretary Huebsch and Dennis Smith, Secretary of DHSS as defendants.  This was presumably done to put on notice these two department heads, whom have principal responsibility for putting the reforms under the law into action, that the law might be overturned in the future.   I have reviewed the amended complaint and it changed none of the substantive allegations in the original complaint except in one respect.  The amended complaint alleges that the bill violated the Wisconsin Constitution in that it contained portions of new laws that were not necessary to the specific purpose for which Governor Walker called the special session of the legislature in January, addressing the shortfall in this year’s budget.  This is an interesting argument in that if that is the basis on which the bill is invalidated, it might also cause litigants to try to call into question the validity of some of the earlier laws passed in special session. 
           The Hearing this Friday is in Courtroom 7B on the Courthouse's 7th floor beginning at 8:30 a.m. and is open to the public.

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