The Gang That Couldn't Shoot Straight - Installment No. 5: Judge Sumi's Ruling

Scott Fitzgerald Banging Down the Gavel on Poor Peter Barca at the March 9, 2011 Conference Committee Meeting.




Today, Judge Sumi issued a thirty-page written decision "voiding" (invalidating, killing, nullifying, tossing into the ashcan of history) 2011 Act 10, the public union-busting measure ostensibly passed by the Assembly and Senate in "giddy-up" fashion back on March 9 and 10, 2011.  She also issued eighteen pages of Findings of Fact, Conclusions of Law and Judgment backing up the written decision she issued today.

The facts of what occurred back in early March regarding the legislature's actions, as they relate to the ability (and propriety in this particular case) of the Circuit Court to void Act 10 under the Open Meeting Law ("OML"), are now fully set out by the trial court in 71 numbered paragraphs.  While it is theoretically possible that the appellate courts could modify the facts based on the record, in essence determining that Judge Sumi's findings are not supported by the transcript of the two days of testimony of 17 witnesses, and exhibits that were received at the hearing, there is less than a snowball's chance in hell of that occurring.  Appellate courts are not typically viewed as "fact-finding" courts, and on appeal or supervisory review, they have a duty to defer to the judge who was in a position to observe the demeanor of the witnesses on the witness stand.  Only if the trial judge has made some manifestly erroneous finding of fact given the unquestioned testimony and exhibits, can the appellate court modify the findings of fact. That will not seemingly happen in this case.

So the facts bearing on whether there was a violation of the OML by the Conference Committee back on March 9 are now established, leaving the appellate courts to consider only two major issues:

1.   Does the OML apply to a Conference Committee meeting conducted under internal rules of the Senate and Assembly.  (A conference committee is convened with a few representatives of both houses, to reconcile the differences when the Senate and Assembly pass differing versions of the same basic bill.  The Conference committee then issues its "Report," which is the melded version of the law, so that each house can then vote to approve the Conference Committee report, and thus pass a law in both chambers with identical language.  More on this later!)  This Conference Committee meeting was the meeting at which Peter Barca, as the only Democrat present, screamed bloody murder about an OML violation and got gaveled down by Scott Fitzgerald.  You can see a clip of it below.

2.  If the OML does apply to the Conference Committee meeting, the ultimate issue becomes whether it was appropriate for Judge Sumi to conclude that the importance of protecting the sanctity of the Open Meeting Law was more important than upholding the Budget Repair Bill.  If the sanctity of the OML is seen as paramount, and it is viewed as being inadequately protected by simply imposing civil forfeitures against the legislators involved, then presumably the appeals courts will sustain what Judge Sumi did today.

One interesting twist to the judge's findings of fact that may or may not be relevant to an appellate court's future ruling.  It turns out that the intention of the GOP legislators was to have the March 9 Conference Committee meeting consider and act on a bill that had in fact had all the fiscal aspects of it stripped away.  If any fiscal aspect remained in the bill, the quorum problem presented by the missing Democratic senators playing in water parks south of the border was still present.  According to Judge Sumi's findings of fact (No. 61) after the Senate voted later the night of March 9 on Conference Substitute Amendment 1, it was discovered that that version had not had all the fiscal aspects stripped away.  So the head of the Legislative Reference Bureau (a non-partisan agency) was called in on March 10 to fix that by deleting some additional language in Conference Substitute Amendment 1.  This amended version of Conference Substitute Amendment 1 was then passed by the Assembly on March 10 and sent to the governor to sign.  So from what I gathered from her findings, Judge Sumi also seemed to be suggesting that even if the Conference Committee's meeting and action on March 9 is not properly nullified for the OML violation, Act 10 may be invalid because both chambers of the legislature did not pass an identical bill.  This particular screw-up would seem to be uniquely related to the GOP effort to rush the matter through in the dark of night.

While Judge Sumi was still handling this lawsuit and waiting for briefs from the parties in order to rule, there were a couple of appellate cases open involving the matter.  One was a request by the Attorney General for an interlocutory appeal (an appeal by permission of the appellate court before the case is concluded at the trial court level) that I previously discussed back in March.  That request to the Wisconsin Court of Appeals was certified up to the Supreme Court by the Court of Appeals in order to expedite some decision on it.

At about the same time, Michael Huebsch, the Secretary of the DOA, petitioned the Supreme Court to issue a "supervisory writ" and take the whole matter over from the circuit court and void the temporary injunction that Judge Sumi issued against publication of Act 10.  There is a hearing presently set in this matter before the Supreme Court on June 6.

I would expect that in light of the decision by Judge Sumi today, the Supreme Court will reject the application for a supervisory writ, and also reject the request for a interlocutory appeal, since any party now seeking to appeal that is aggrieved by Judge Sumi's decision today has an appeal of right, mooting the need for an interlocutory appeal.

In the Supervisory Writ proceeding still pending before the Supreme Court, the Circuit Court was allowed to file its own brief defending its powers and actions, and Judge Sumi retained some exceptional attorneys to file a brief on her behalf.  It was an elegantly written brief that you can find here.  The question of whether the legislature intended to make itself subject to the enforcement provisions of the Open Meetings Law, just as it had made city councils and school boards subject to enforcement, was dealt with at length. The brief discussed the constitutional dimension of the Open Meeting Law, on which the law specifically stated it was based. My favorite part of this portion of the brief was the following:

As a deliberate legislative choice, in sum, that branch of government rightly knelt to the public just as it decreed that other governmental bodies must.  Article IV, Section 10 of the Wisconsin Constitution provided both the impetus and the imperative to do exactly that.

May it be ever so, but don't be surprised to see some zany Republicans in our state legislature try to change all this by modifying the Open Meetings Law in the near future.