The Train (To Anti-Union Station) is Derailed: Judge Sumi Grants The Dane County DA a Temporary Injunction Barring The Secretary of State from Publishing 2011 Act 10, the Union-Busting Bill

Judge Maryann Sumi gave one of the lowest key, soft spoken, yet inspiring rulings I have heard in a courtroom  when she ruled today in favor of Dane County DA Ismael Ozanne's motion for a temporary restraining order pendent lite barring Douglas LaFollette, the Secretary of State, from publishing Wisconsin 2011 Act 10, the Governor's special session bill that, among other things, removed public collective bargaining rights from Wisconsin state and local employees other than police and firemen.  Following her ruling, the judge set a hearing on the merits of the violation of the Open Meetings Law claim brought by the Dane County DA for two days, beginning on March 29 and continuing on either March 30th, or April 1 (Although she joked she would like to stay away from the latter date.)

After hearing arguments from both sides for the better part of an hour and a half, Judge Sumi stated  in a twenty minute oral ruling that she was satisfied that the State of Wisconsin, acting through the offices of the Dane County DA, had met all four of the tests for the granting of an injunction under Wis. Stats., sec. 813.02:

1.  Likelihood of ultimate success on the merits when the full evidentiary hearing is conducted.
2. Necessity of showing that the State's citizens will suffer irreparable harm if the temporary injunction is not granted.
3. Lack of an adequate remedy under the law if the law is not at least temporarily enjoined.
4. The need to preserve the status quo pending the decision on the merits of the claim after the two day hearing.

Her is a summary of her analysis of these four issues:

Likelihood of Prevailing on the Merits.  On this issue, Judge Sumi noted that she understood the subordinate issues to be: (a) Is there a reasonable likelihood the DA will ultimately be able to demonstrate that there was a violation of the Open Meetings Law, based on the allegations of the pleading filed by DA Ozanne, and the representations of the parties in the hearing this morning, and (b)  Is there a reasonable likelihood that the DA will convince her that an appropriate remedy under the law is to render "void" the actions of the Conference Committee.  She noted that she had to be satisfied on both these issues to issue the temporary injunction.

Judge Sumi cited Wis. Stats., sec. 19.84 (3) which states:

"Public notice of every meeting of a governmental body shall be given at least 24 hours prior to the commencement of such meeting unless for good cause such notice is impossible or impractical, in which case shorter notice may be given, but in no case may the notice be provided less than 2 hours in advance of the meeting.

She noted she believed this clearly put the burden of proof on the Legislative defendants to prove "good cause" for deviating from the 24 hour notice requirement, and they would not likely be able to show that.  She also said that there can be no internal legislative rule governing how the Senate or Assembly conducts legislative business that can be held to override sec. 19.84, the Open Meetings Law, and thus it was incumbent on the defendants to show good cause for rushing the stripped down budget repair bill through the Conference Committee on March 9.  She noted that there was uncertainty about whether there had been two hours prior notice of the Conference Committee meeting that afternoon, but she didn't need to address that issue to decide today on whether to grant the injunction.

Judge Sumi said she had not found a case that helped define the term "good cause" within the context of the shorter two hour provision.  She then relied on a case that I did not hear either set of Attorneys cite (but I missed the first thirty minutes of the hearing) State ex rel Buswell v. Tomah Area School District , 301 Wis.2d 178, 732 N.W.2d 804, 220 Ed. Law Rep. 859, 2007 WI 71, in which Supreme Court Justice Bradley said that the adequacy of a specific meeting notice would, on a case-by-case basis, turn on several factors:

1.   Is the Open Meetings Law standard and concomitant burden being sought by the plaintiff to be imposed by the court: "compatible with  the conduct of Government affairs." Here Judge Sumi drew a distinction between: (a) citizen board members in rural towns that are often confronted with Open Meeting requirements, but not possessing substantial experience with it, and (b) the sophistication about such matters possessed by elected state legislators that have to engage the Open Meetings Law on an almost daily basis.  She felt that the burden should be greater on the latter group to comply more strictly with the law.

2.   The particular public interest in the subject matter of the meeting and the intensity of that interest.  Judge Sumi, tongue planted firmly in cheek, essentially said she didn't  have to spend time justifying that aspect of the Buswell standard with respect to what the Conference Committee was doing.

3.  Whether the subject of the meeting was routine or novel.  Buswell (which concerned whether the details of an otherwise proper 24 hour notice put the public on adequate notice that teacher and athletic coaches contracts were going to be considered at the meeting) held that where the subject of the meeting occurred regularly in meetings less is required in terms of specificity of the meeting notice, but where the subject matter was novel, and likely to catch the public unaware, more was required.  Judge Sumi held that this test was clearly present in the current case.  As Justice Bradley said in Buswell:  "Novel issues may therefore require more specific notice."  Judge Sumipropelling the legislation (into a new Act 10)" had in fact "caught the public by surprise."

Judge Sumi then moved back to the issue of the likelihood that the DA could convince the court after the full hearing that the court had the power to void the legislation.  She cited the statute's provisions in sec. 19.93(3)

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.

She said that while the defendants had tried to suggest that fines under the Open Meeting Law would provide a proper remedy, she found that argument unpersuasive, and so she moved on to analyzing the underlined language in the above-quote.  She noted that there was no case law specifically addressing this balancing test, but that she was satisfied that the interest of Wisconsin citizens in having legislation carried out properly under the Open Meetings Law, outweighed any interest in sustaining the future effectiveness of the stripped down Budget Repair Bill.  Here she essentially said that if the law makes great sense to the Legislature for the benefit of the citizens of the state, an issue she expresses no opinion on, the Wisconsin Legislature can quickly take it up again and do it right under the Open Meetings law.  At this point I am not aware of whether the special session the Governor called in early January has adjourned or not.  If it has, the bill would have to go through a newly called special session, or await the regular session of the legislature in early April. 

While she focused primarily on the adequacy of the timing of the notice of the Conference Committee meeting, Judge Sumi did mention that she felt that there was some substance to the fact that the public was not allowed into the small chamber where that meeting was held, and that this was an independent basis for questioning the propriety of the meeting under the Open Meetings Law. Thus, Judge Sumi concluded that the Dane County DA, acting on behalf of the citizens of Wisconsin, had established a reasonable likelihood of prevailing on the merits after the full blown evidentiary hearing on the merits of his claim (again, beginning March 29th).

Demonstration of Irreparable Harm to the Public if the Preliminary Injunction is not issued. 

 Judge Sumi said she was satisfied that there was legal authority in Wisconsin that where the government is seeking to enforce public rights, as the Dane County DA was doing in this instance, there was less of a burden to show irreparable harm in order to secure injunctive relief pending a full hearing, citing Forest County v. Goode, 219 Wis.2d 654, 579 N.W.2d 715 (1998).   She noted for the record that when she researched and found the Forest County case, it seemed familiar to her, and she then recalled that she had argued for the Attorney General as an intervenor, and that the case had been handled for the plaintiff Forest County by current Supreme Court Justice Michael Gableman when he was Forest County Corporation Counsel.  She cited the decision as holding that when a public entity was seeking to enforce a statute by injunctive relief (in Forest County the enforcement of a zoning code) the public entity did not have to show irreparable harm. Judge Sumi then said she believed that regardless of Forest County's applicability, she was satisfied that there would be irreparable harm to the citizens of Wisconsin if the temporary injunction did not issue. She again noted that forfeitures imposed on legislators (suggested as adequate relief by their attorney, AAG Maria Lazar) would be of scant or no effect in protecting the public's interest under the Open Meetings Law in the context of this case, and that the legislators had already asserted (maybe suggested?) that their judicial immunity, while in session or within 15 days before or after a session, currently protected them from sanction anyway.  Thus she concluded that any remedy other than injunctive relief made no sense. 

Lack of an Adequate Remedy if the Publication of the Law is not Enjoined.

Here Judge Sumi primarily reiterated the points she made in connection with the irreparable harm argument.  She said she was convinced forfeitures were wholly inadequate as relief alternative to an injunction.

Preserving the Status Quo

Judge Sumi said she felt it was essential to the interest of the public in preserving the sanctity of the Open Meeting law to not permit the law to be published until such time as she conducted a full hearing on the merits of the law and decided thereby whether to void the Act itself or not. 

Judge Sumi then closed with some additional remarks:  

She said that given that the bill was passed in the legislature, signed by the Governor, and transmitted to the Secretary of State for publication in order for it to become law, citizens might pose a legitimate question along the lines of:  "How can something so minor as inadequate notice of a Conference Committee meeting serve to stop the enactment of the law in its tracks."   She said the simple answer to that question is that the notice is not a "minor" issue.  She said she had a somewhat hokey analogy.  She stated that she guessed many of us in the courtroom had watched the Super Bowl this year. (Lots of laughter.)  She then said she had seen during the game a crowd shot in which she saw a spectator in Dallas wearing one of the foam "cheeseheads" on which the fan had printed "Owner."  She said she knew all of us knew this referred to the unique status of the Packers as a community owned professional team, a source of pride in Wisconsin.  The citizens of Wisconsin, she continued, "owned" their government.  There were three important ways among others that the citizens exercised their ownership rights:  First, through voting.  Second, through the right of public access to their representatives. Third, citizens were entitled to free and open access to governmental meetings.

She concluded by saying that the alleged violation in this case was "fundamental" to the interest of citizens that "nothing happen in secret."   In this regard she quoted the opinion in State ex rel Hodges v. Town of Turtle Lake,  180 Wis.2d 62, 508 N.W.2d 603 (1993):

"An Open Meetings Law is not necessary to ensure openness in easy, noncontroversial matters where no one cares whether the meeting is open or not. Like the First Amendment which exists to protect unfavored speech, the Open Meetings Law exists to ensure open government in controversial matters. The Open Meetings Law functions to ensure that these difficult matters are decided without bias or regard for issues such as race, gender, or economic status, and with regard for the interests of the community. This requires, with very few exceptions, that governmental meetings be held in full view of the community."

 In a brief tribute to a Supreme Court jurist, Judge Sumi noted that those were the words of Justice William Bablitch, who she also noted died just a couple of weeks before the conduct of the Conference Committee meeting on March 9.

After her oral ruling, the attorney for the defendants asked that Judge Sumi stay the effectiveness of her ruling to allow for an immediate appeal.  DA Ozanne objected as he (and the judge presumably) recognized this for what it clearly was, an effort to permit the Secretary of State to comply with the law and go ahead and publish the law.  (Git 'er done!)   The judge denied the request and noted that since today's ruling was not a final decision under the appellate rules, the defendants did not have an appeal of right currently, but could seek an interlocutory appeal, for which the threshold for being granted an appeal is relatively high

During her argument, Assistant Attorney General Maria Lazar, the counsel for the defendants cited the LaFollette v. Stitts case (I had addressed in a previous post)  for why the court did not have authority to step in and enjoin the publication of the law.  In Ms. Lazar's words:  "You can't stop a train that has left the station."  That is the source of the title for this post.  Judge Sumi decided she could at least put the train on a siding for now.

There is no reason, if the Republicans think continued litigation is not the best way to go (and one would hope in this time of extreme fiscal crisis, they would be thinking about the litigation costs), that they can't go back and redo the Budget Repair Bill either in its original shape from February, or in the hurried through stripped down version sprung on poor Peter Barca on March 9. The Dems aren't going to go play in Rockford water parks again.  However, taking this approach will just bring "slobs," "union thugs" and (in the words of Scott Fitzgerald, the politician, not the author) "long haired goof f***ers" streaming back to the Capitol and give added vitality to the recall efforts.  That the GOP will not want, so look for the litigation to go forward.