As Wisconsin voters vote today on a state supreme court election that could shift the balance of power to liberals, it is worthwhile reviewing the judicial moves which led to the contentious restraining order against the newly passed law governing public employee unions.
Last week, Dane County Circuit Court Judge Maryann Sumi heard arguments over several days, concluding on Friday, concerning possible violations of the Open Meetings Law by Republican lawmakers who voted on a budgetary repair bill limiting collective bargaining for public education employees.
The bill became Act 10 after passage by both houses of the legislature and approval by the Governor, but Sumi blocked its implementation with a temporary restraining order after Democrats filed a lawsuit.
Democrats argue since a 24 hour prior notice required by the Open Meetings law was not given before Republicans voted on the bill, Act 10 was not created lawfully and cannot be published and thus enacted.
Republicans counter they complied with proper notification procedures under Senate rules when they posted notice of the vote two hours in advance.
"In special session, under Senate Rule 93, no advance notice is required other than posting on the legislative bulletin board. Despite this rule, it was decided to provide a 2 hour notice by posting on the bulletin board. My staff, as a courtesy, emailed a copy of the notice to all legislative offices at 4:10, which gave the impression that the notice may have been slightly less than 2 hours. Either way, the notice appears to have satisfied the requirements of the rules and statutes."
In spite of Sumi's temporary restraining order (TRO) to stop the Secretary of State from publishing Act 10, another agency called the Legislative Reference Bureau (LRB) posted the law online. State Attorney General J.B. Van Hollen along with Republican officials claimed LRB's posting effectively published the Act so therefore it was in force. Sumi apparently had assumed the LRB is "in privy" with the Secretary of State, but LRB acts independently of the Secretary of State and was unnamed in the original injunction so Republicans believed LRB's action was not in violation of the TRO. Noticeably annoyed by LRB's posting, Sumi issued a reaffirming order to roll back LRB's alternate publication of the Act. In her short and decidedly stern order she said, "It is hereby DECLARED that 2011 Wisconsin Act 10 has not been published within the meaning of (state statutes), and is therefore not in effect." During remarks in court, Sumi was critical of LRB's attempt to publish the Act saying such action "ignored or misinterpreted" the restraining order intended to stop the publication of the law. Sumi then threatened sanctions against anyone who disobeyed the re-affirmed order:
"Now that I've made my earlier order as clear as it possibly can be, I must state that those who act in open and willful defiance of the court order place not only themselves at peril of sanctions, they also jeopardize the financial and the governmental stability of the state of Wisconsin."
Sumi also warned attorneys to restrain their public comments that had become more contentious after the issuance of the TRO:
"They all have a responsibility to promote and not denigrate the judicial branch and, more importantly, the rule of law."
Meanwhile, Sumi ordered attorneys to prepare and enter briefs which must include answers to three questions dealing with legislator immunity. The state constitution gives legislators immunity from any civil process during the "session of the legislature" and so they were not required to appear in court.
A possible solution for Republicans would be to schedule another vote on Act 10 after giving the necessary 24 hour notice and pass the legislation a second time, but Republicans indicate they have little interest in such a measure. An additional vote would likely lead to an escalation of disruptive union protests and filibuster activities by Democrat operatives.
"We passed the law correctly, legally the first time," Senate Majority Leader Scott Fitzgerald said in a statement. "Passing the law correctly and legally a second or third time wouldn't change anything. It certainly wouldn't stop another activist judge and room full of lawyers from trying to start this merry-go-round all over again."
Attorney General Van Hollen has publicly disputed Sumi's rulings and the court's interference in the legislative process.
In a statement responding to the TRO Van Hollen wrote,
"Decisions of the Supreme Court have made it clear that judges may not enjoin the Secretary of State from publishing an Act. Further, the Secretary of State is without discretion to refuse to publish an act because of perceived procedural irregularities or constitutional concerns. Decisions of the Supreme Court are equally clear that Acts may not be enjoined where the claim is that a rule of legislative procedure, even one as important as the Open Meetings law, has been violated."
In the appeal brief, the state Justice Department questions whether a law could be voided solely on the basis of an Open Meetings violation and whether the court has the authority to pass such judgment.
"Court does not need to determine whether the Open Meetings Law was violated. Instead, it must only assess whether a court may issue an injunction against a party over whom it has no personal jurisdiction, whether a court may issue an injunction to interfere with the constitutional power of the Legislature to declare what shall become law, and whether a court may issue an injunction to suspend publication of a law on a legal basis that does not provide the court with the authority to declare the law void. If the court lacks any of these powers, the TRO must be promptly vacated."
It should be noted, Senate rules prevail over the Open Meetings law because of an exemption in the statute. Wisconsin Statute §19.87(2) states,
"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."
To date, Sumi's emphasis has been to determine if legislators were in compliance with only the Open Meetings law. However, legal precedent does not seem to favor the judge or the Democrats' premise an Act can be voided for that reason alone.
"In Goodland v. Zimmerman, 243 Wis. 459, 10 N.W.2d 180 (1943), the Supreme Court held that judges may not enjoin the publication of a law on the basis that it is or might be unconstitutional. A bill, in the Court's view, is not enacted until it is published such that publication is part of the legislative process with which courts may not interfere. Unless the Court wants to abandon that precedent, I think that it clearly requires that the restraining order be vacated and the case be remanded with instructions to dismiss."
Judge Sumi's decision to block publication of the Act may in the end raise more questions about her ruling than bring to light any legal basis that warrants interfering with the legislative process.
Under Wisconsin's Code of Judicial Conduct, "a judge may not be swayed by partisan interests, public clamor or fear of criticism." Also, "a judge may not allow family, social, political or other relationships to influence the judge's judicial conduct or judgment."
With the revelation of an apparent conflict of interest involving the judge's son and his activities with unions, Sumi's ruling may be called into question.
Arbitrary interference in the legislative process by activist judges is obviously a cause for concern for all Americans. Judges could ultimately determine which state laws are enacted simply by blocking legislation they oppose. With the advent of fugitive legislators that scurry across state lines and file civil lawsuits with sympathetic courts to sabotage the democratic process, judges and disgruntled lawmakers could easily work together to subvert the will of voters.
Yet another wrinkle in this hyper partisan fight is the upcoming election of incumbent judge David Prosser Jr., who formerly served as a Republican in the assembly. The outcome of his re-election bid could shift the balance of Wisconsin's Supreme Court in favor of Democrats which could conceivably undermine future attempts to reform collective bargaining. As expected, recall efforts are underway against 16 Wisconsin senators, eight from each party. State officials can be recalled after serving one year in office. And in a rather strange show of defiance against Governor Scott Walker and Republicans, faculty members at several Wisconsin universities are unionizing to show their solidarity with public sector teachers.
Jennifer Collins, assistant professor of political science, said in a Bloomberg News interview, "People feel like this is one way we can stand up and express our opposition to the direction the governor is taking in the state."