Wednesday, March 23, 2011

Tonight or Tomorrow We Should Hear About Act 10 - Concern over Publishing Deadline Driving Fast Track Appeal?

Judge Paul Higginbotham of District 4 Court of Appeals, who along with Judge Paul Lundsten and Judge Brian Blanchard, are considering the Petition for an Interlocutory Appeal in Ozanne v. LaFollette.

Yesterday I posted about the Court of Appeal's Order Monday that seems to be putting the AG's Petition for an interlocutory appeal of Judge Sumi's injunction on the fast track.  The fact that the Court wanted DA Ozanne to brief a specific issue by 4:00 PM yesterday, and gave him until today at 4:00 PM to address the balance of the arguments in the AG's brief tells me that the Court expects to do something substantive with the AG's Petition either late today or very early tomorrow. 

The AG's brief argues, at page 30, that if the law can't be published by the statutory deadline of March 25, later publication will not serve to convert Act 10 into an effective law.  This is one of the bases for the AG to ask the Court of Appeals to step into the fray immediately, rather than to wait for Judge Sumi to finish the lawsuit at the trial level.  This argument seems silly, as a practical matter.  If the injunction serves to delay the publication, it would be most reasonable to view the statutory deadline for the law's publication to be extended on a day-for-day basis for every day the injunction was in effect.  I would guess that is how the Court of Appeals would likely treat that publication issue.  But the Court may be wanting to try to avoid having any new Democratic challenge to the effectiveness of the new law created by its delay in handling the lawsuit. Thus, if the Court of Appeals does decide the injunction was improvidently granted, a quick ruling  will permit the publication by Friday.  If the Court of Appeals rules against stepping in at this stage, a quick ruling may leave the Supreme Court some time to step in on an emergency basis and decide whether to lift the injunction in time for publication Friday.

If the Court of Appeals rules that the injunction should not have been granted, I would look for it to possibly stay the lifting of the Sumi order for a day, to give the DA time to try to quickly make an argument to the Supreme Court that the injunction should remain in place until the Supreme Court decides to consider taking the case on.

Tonight or tomorrow morning will shed more light on the future of Act 10. And I predict the handling of the matter at the Supreme Court will be on people's minds when they vote on April 5.

1 comment:

  1. The Republicans are pulling out all the stops: Last night on O'Reilly, Fox's "legal expert" Kimberly Guilfoyle, stated that the Judge was clearly biased because her son used to work for a union and that the TRO would certainly be reversed. So there. No sense even waiting for the decision.