Tuesday, March 22, 2011

Sumi Injunction is on the "Fast Track" - Court of Appeals Orders Immediate Response from Dane County DA.

Train traveling on the Main Line (Just don't look for it in Madison anytime soon.)

Judge Sumi's order Friday put Act 10 on a temporary siding. Yesterday, the validity of Judge Sumi's order was put on the "main line" by the Court of Appeals.

The Court of Appeals issued an order late yesterday giving Dane County DA Ismael Ozanne until 4:00 PM today to file a response to a specific argument contained in the brief filed by the Attorney General in support of its motion to lift Judge Sumi's injunction on the publication of Act 10, the union-busting bill, and the AG's request that the appellate court take the matter up as an interlocutory appeal.  The order request DA Ozanne to specifically address the arguments at pages 21-23 of the AG's brief which asserts that the Wisconsin Supreme Court case, Goodland v. Zimmerman, 243 Wis. 459 (1943), precludes any Wisconsin Court from ever enjoining the publication of a law.  Goodland, in essence, says that there is no such thing as an unconstitutional "bill" or "act," and that the constitutionality issue only "ripens" when the bill progresses through the publication process. Goodland also expressly forbids lower courts from granting injunctions against the publication of the a law:
Because under our system of constitutional government, no one of the coordinate departments can interfere with the discharge of the constitutional duties of one of the other departments, no court has jurisdiction to enjoin the legislative process at any point.  Goodland. 243 Wis. at p. 468.
At least one Marquette law professor has weighed in on the controversy claiming that Goodland precludes what Judge Sumi did last Friday in enjoining the publication of the Act.  Rick Esenberg claimed to be "quite frankly astonished" by what Judge Sumi did.

Goodland was decided, however, thirty-two years before the re-enactment of the State's Open Meeting Law in 1975, and it seems to me that the decision in Goodland did not contemplate that the Wisconsin Legislature would later enact a statute that would expressly cede to the courts the power to step in and consider whether effective and meaningful relief as to a violation of the Open Meetings Law requires the court to grant injunctive relief against a "law" passed in violation of the Open Meetings Law. 

There seems to be no question that the Open Meetings Law covers session meetings of the Wisconsin Legislature.  Sec. 19.87 reads:
19.87   Legislative meetings. This subchapter shall apply to all meetings of the senate and assembly and the committees, subcommittees and other subunits thereof, except that:
(2) No provision of this subchapter which conflicts with a rule of the senate or assembly or joint rule of the legislature shall apply to a meeting conducted in compliance with such rule.

(3) No provision of this subchapter shall apply to any partisan caucus of the senate or any partisan caucus of the assembly, except as provided by legislative rule.
While the conference committee meeting at which poor Peter Barca stood up waving paper around and shouting about an open meeting law violation looked an awful lot like a partisan caucus, and might as well have been one, it wasn't one, so sub (3) above doesn't apply.

So to my mind, the only issue is whether the Open Meetings Law should be seen as overcome by some internal rule of the legislature with which it directly conflicted. 19.87 (2), above.  But that raises an issue as to whether this exception is available because the conference committee meeting was not conducted in compliance with a legislative rule.  The rule with which the Open Meetings Law might be seen as conflicting  is supposedly the two hour notice rule that the GOP asserted to Judge Sumi at Friday's hearing, but even the GOP's lawyer, Maria Lazar, said the defendants couldn't prove compliance with that rule.  Moreover, according to legislative rule, the conference committee meetings are supposed to be conducted for the specific purpose of reconciling two separate versions of a proposed law that have been passed in both the Assembly and the Senate.  Since nothing was ever passed the Senate on the union-busting measure before the world's quickest conference committee meeting in history, that may provide an additional  reason why the exception shouldn't be applied.

The Court of Appeals gave DA Ozanne until tomorrow afternoon to otherwise respond to the AG's Petition for Review and request to have the injunction of Judge Sumi summarily lifted. So the Court of Appeals intends to move apace, and perhaps before the current deadline for publication on the 25th.  All this does not mean that the Court of Appeals won't be kicking the case upstair to the Supreme Court, and injecting this hornet's nest into the Supreme Court election on April 5.  The Court of Appeals would have to decide that it was appropriate to have an interlocutory appeal as part of certifying the case on down the track to the Supreme Court.

"Highball Ozanne v. LaFollette, track clear to the Supreme Court."  Is that what we are going to hear from the Court of Appeals' dispatcher?

I am still going with Judge Sumi on this one.

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