Sunday, March 20, 2011

The Naughty Dog Scenario?

Every day that passes where the Governor and the GOP leadership in the legislature continue fighting in court to sustain 2011 Act 10, the union-busting bill, serves to put lie to the GOP narrative that the law in its current state is necessary for the financial health of Wisconsin, and serves to expose the Act as nothing more than a cynical effort to destroy public employee unions and seriously injure the Democratic party.
A review of the current situation as to the Budget Repair Bill (at least for now Act 10) is needed to support this thesis:
1.                   There was absolutely nothing in Judge Sumi’s decision this past Friday, March 19, granting the temporary injunction precluding publication of the union-busting stripped down Budget Repair Bill, which would serve to block the Wisconsin Legislature from going back to the drawing board and re-enacting Wisconsin Act 10.   In fact, in the discussions between Judge Sumi and counsel during the hearing, it was acknowledged by everyone that this was an alternative the Governor and legislature could choose to follow in order to avoid continued litigation over whether the law was properly enacted.  (Judges love it when litigants solve their own problems and free up court calendars!)
2.                   Any new bill enacted by the legislature after taking this “do-over” approach could become 2011 Wisconsin Act 11, and be identical to the wording and effect of Act 10. 

3.                   The Special Session called by Governor Walker to deal with several pieces of legislation is still on-going according to the Legislative Reference Bureau’s Weekly Spotlight for March 21, 2011.  Thus the do-over would not have to await the start of the next regular session of the Legislature which is still two weeks away.

4.                   The 14 Democratic Senators are back in the state and not going anywhere now.  They have gotten used to sleeping in their own beds and eating home cooking.  They accomplished what they hoped for in leaving the state, slowing the process down so a little sunlight could shine on what the majority Republicans and the Governor were trying to accomplish by the Budget Repair Bill. 

5.                   Only one Republican Senator, Dale Schultz of Richland Center, broke ranks with the folks in his caucus on the bill when the Senate voted 18 to 1 on March 9, to pass the bill.  Thus, assuming only Senator Schultz  breaks ranks from the Republican Senate caucus on a “do-over” bill, the Senate is assured of passing the “do-over” bill on at least an 18-15 vote.   (I say “at least” tongue in cheek.)

6.                   The Assembly voted in favor of the now judicially sidetracked Act 10 by a vote of 53-42, with only 4 Republicans (Kaufert, Nerison, Spanbauer and Tranel) voting “no” and Assemblyman  Mursau “not voting.”  Thus continued Assembly support for passing a “do-over” bill seems assured.  Six more Republicans would have to switch sides for the “do-over” bill not to pass.  That would make them "Mavericks," a plus for a Republican candidate in 2008, but suicide in the age of the Tea Party.

7.                   Before the stripped down version of the BRB was ostensibly passed on March 10 and signed by Governor Walker on March 11, the state sent state employee unions notices of possible layoffs as to 1,500 employees.  The State indicated that the targets of the layoffs would still have to be determined.

8.                   The lay-off notices were justified by the Walker administration based on the state not being able to realize a roughly  $30,000,000 cost savings in the 2010-2011 fiscal year budget, ending June 30, 2011, because the budget repair bill had not been passed due to the absence of the Democratic  14 Senators.  Here is the Legislative Fiscal Bureau’s analysis from March 9, on the stripped down version of the BRB, where at page 6 of 37 in the PDF report, you can see these numbers.

9.                   After the BRB was supposedly passed and signed into law, the Governor  ordered the notices of lay-offs rescinded and said the following in a press release issued by his office:

"The Legislature helped us save 1,500 middle-class jobs by moving forward this week with the budget repair. The state will now be able to realize $30 million in savings to balance the budget and allow 1,500 state employees to keep their jobs. The reforms contained in this legislation, which require modest health care and pension contributions from all public employees, will help put Wisconsin on a path to fiscal sustainability.

10.               A new “do-over “ budget repair bill could presumably be passed as quickly as this coming week or early the week of March 28. The original SB11 which was ultimately “stripped down” went from first reading (introduction) in the Senate to being ready for passage (the day the Dem 14 skipped the state, February 17) in three days.

11.               Judge Sumi’s order from Friday granting a temporary injunction barring publication of the law is not one that can be appealed by right, because it is a temporary not a final order.  (I don’t want to go into too many nuances of appellate law here, just trust me on this one.)  Thus any appeal the Administration, acting through the Attorney General, tries to take from the granting of the temporary injunction will have to meet the following test:

Taking the appeal before the case has been finalized by the trial court “will materially advance the termination of the litigation or clarify further proceedings therein, protect a party from substantial or irreparable injury, or clarify an issue of general importance in the administration of justice.”  

12.               The earliest such a petition for a discretionary appeal by the Administration can hit the Court of Appeals will be tomorrow, March 21.  It would be extraordinary (if not improper) for the Court of Appeals to quickly grant it without hearing arguments against granting it from the plaintiff, the State of Wisconsin as represented by Dane County DA Ozanne. 

13.               The Court of Appeals could shorten the time for DA Ozanne to respond to the State’s petition and quickly rule on it under Wis. Stats., sec.  809.20 which reads:

“The court (may take cases under submission in such order and upon such notice as it determines. A party may file a motion to advance the submission of a case either before or after the briefs have been filed. The motion should recite the nature of the public or private interest involved, the issues in the case and how delay in submission will be prejudicial to the accomplishment of justice.”

14.               The best argument for why it isn’t necessary for the Court of Appeals to take the case away from Judge Sumi before her hearing on the merits now scheduled for March 28th is because the defendants will not suffer irreparable harm if the case proceeds to conclusion before Judge Sumi.  At least three reasons (and DA Ozanne may find more) why the GOP defendants won’t be irreparably harmed are:  (1) Judge Sumi may rule as early as the end of March, just eight days from now, that the Act is valid, as either no Open Meetings Law violation occurred (as the GOP defendants strenuously contend), or even if a violation did occur, she doesn’t feel the violation warrants declaring the Conference Committee action and thus the Act “void.”   (2)  If Judge Sumi “voids” the Act at the end of March, the GOP defendants can immediately appeal “by right” that decision (Judge Sumi would know the public interest requires her entering a final order almost immediately after ruling) and thus the delay in their getting an appeal started of an order voiding the Act could be as short as nine or ten days from now.  (Judge Sumi already ordered the parties to submit briefs in advance of the March 28 hearing, so she is presumably planning to deal with the merits of the issue of the legality of the Act as quickly as possible after the upcoming hearing.  (3) The Governor and his administration have already shown that they have a feasible alternative to ameliorate any harm, namely reinstating lay-off notices as they did before.  If the cost of the delay in denying an immediate interlocutory appeal (appeal only by permission, not by right) and allowing Judge Sumi to finish up the lawsuit means that they have lost time in savings realized from public employee contributions to pensions and health benefits between now and  June 30, 2011, then perhaps the new layoff notices have to be for 2,000 employees instead of the previously noticed and rescinded 1,500 layoffs.

15.               Unless the Court of Appeals determines that it likely may reverse Judge Sumi because it concludes that an Act passed by the State Legislature can’t be voided under any factual circumstances for an Open Meeting Law violation, it would be improper for the Court of Appeals to pull the case away from Judge Sumi on a discretionary appeal before a factual record is made at next week’s hearing on the merits.  One of the key purposes of the fact-finding at the hearing will be determining when actual notice was given for the Conference Committee meeting (if the two hour requirement was met), and whether there were appropriate facts supporting the GOP deviation from the standard 24 hour notice requirement under the Open Meetings Law.   Trial Courts listen to testimony and handle fact-finding, not appellate courts.

16.               The Open Meetings Law specifically provides that a Wisconsin Circuit Court can void a law passed at a governmental meeting violating the Open Meetings Law:

Any action taken at a meeting of a governmental body held in violation of this subchapter is voidable, upon action brought by the attorney general or the district attorney of the county wherein the violation occurred. However, any judgment declaring such action void shall not be entered unless the court finds, under the facts of the particular case, that the public interest in the enforcement of this subchapter outweighs any public interest which there may be in sustaining the validity of the action taken.

17.               Judge Sumi clearly put the Open Meetings Law’s constitutional dimension into play in the lawsuit by her ruling.  See page 1 of her decision. 
So what does this way too drawn out exegesis mean?   I think it means that this case will be allowed to course through its conclusion before Judge Sumi, and then if the Act is voided by her, it will be handled on an expedited basis before the appellate courts.   If after the hearing on the merits Judge Sumi decides the law should not be voided, the law will be published and go into effect unless Judge Sumi continues her injunction pending some action by the court of appeals to lift it. 
But why does the GOP even bother with all this litigation malarkey when it has it within its easy reach to pass the “do-over” law much more quickly than Judge Sumi is likely to act?  Why does it continue coursing down the path of costly litigation (“The State is Broke!” “The State is Broke!”) when it might take many months to reach a judicial conclusion and the conclusion might then be (and in my view likely will be) adverse to the enforcement of the Act?   If this union-busting aspect of the Budget Repair Bill is really so critical to the success of the Governor’s next budget being implemented with massive cuts in state aids to local municipalities and school districts (the tools the Governor wants to give these government bodies  and which they don’t want)  why mess around in the courts?  Isn’t that just going to run the risk that when and if the courts rule against the effectiveness of the Act, there will have to be even more massive layoffs of state workers to make up the $30,000,000 before June 30 of this year?  Why would a Governor, and GOP legislature, who are “all about creating jobs,” run such a huge risk?  
I think the answer lies in a few separate or conjoined possibilities (all cynical, but not equally cynical):  
1.            The Governor and the GOP leadership care more about their political safety than the well-being of the state treasury or the jobs of a massive number of public employees who might have to be laid off after a loss in the litigation, or for that matter, after a win in litigation that comes only after a protracted fight.  Under this scenario, the “do-over option” totally sucks for them because it will: (a) bring protesters streaming back to the capitol by the tens of thousands on a weekly if not daily basis, (b) lead to more opinion polls showing the public is against their anti-union position about five to three, thereby painting them once again as indifferent to the public’s desire that there be compromise on the collective bargaining issue, and (c) fully re-energize any recall efforts against the GOP8 that may be lagging.   So this scenario might be called the “Our political self-preservation trumps the public well-being scenario.”
2.            There is now a serious concern that enough members of the GOP caucuses are deciding they don’t want to go forward with the union-busting effort that the Governor and the Brothers Fitzgerald have a concern over whether the law would in fact pass if the “do-over option” were attempted.   In this regard, print and broadcast news reports of the receptions that GOP lawmakers are currently receiving at town hall and school board get-togethers in their districts are, shall we say, a little less than rosy.  A lot of GOP voters in the last election were for addressing the budget problems, not killing union rights.  And perhaps even fewer of the voters that elected the current GOP8 recall targets, elected "way back" in 2008, were fired up over the power of public employee unions.   This could be called the “We’ve lost the fight, thank God it wasn’t anything we really needed anyway scenario.”
3.            The Governor and Brothers Fitzgerald want the issue taken from their hands and put into the hands of the Courts.  If they win quickly, they overcame just another “liberal activist judge” and they followed the Open Meetings Law in enacting Act 10. (Even if the finding is that there was a technical violation of the Open Meeting Law but the Act is not voided by the courts, they will celebrate their victory and spin the violation issue, and we will have to see if the voters care about the sanctity of the Open Meeting Law in the future.)  If they lose, then they are back to square one and can take the pulse of the voters again. If the pulse doesn’t favor them attempting a “do-over at that point, they can bemoan how the courts stepped into the legislature’s affairs, trampled on separation of powers, and fire their fringe base up at the further expense of respect for Wisconsin’s  judiciary.   Moreover, if it takes them a while to either win or lose, they can lay-off lots of government workers, shrink the size of the state workforce, all while claiming it was those damn Democrats that forced all this to come about with their lawsuit.  This might be called the “Let’s turn the stupid Act into an orphan scenario.”
4.            The GOP leadership are just bull-headed, and continue the court fight because they are totally running the show now and don’t care what makes good sense.  That is to say: “Because they can.” The more I watch Scott Fitzgerald and read his press releases, the more plausible this otherwise seemingly misplaced theory becomes.    This could be called the “Naughty dogs scenario.”
5.            The law isn’t necessary for the financial health of the state.  This could simply be called the “God’s truth scenario.”

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