I have not seen the opinion yet -- it is unclear whether there is a written opinion or this was issued orally from the bench -- except for this report from the Milwaukee Journal Sentinel:
Dane County Circuit Judge Maryann Sumi issued a temporary restraining order Friday, barring the publication of a controversial new law that would sharply curtail collective bargaining for public employees.If this report accurately reflects the ruling, then the ruling is profoundly weak. The standard for a TRO requires a showing of likelihood of success on the merits, irreparable harm, and that a balancing of the equities supports granting the injunction. Some courts also consider whether granting the TRO will harm the public interest, but where the state is the party, this test really is subsumed in the balancing of the equities test.
Sumi’s order will prevent Secretary of State Doug La Follette from publishing the law until she can rule on the merits of the case. Dane County Ismael Ozanne is seeking to block the law because he says a legislative committee violated the state’s open meetings law.
Sumi said Ozanne was likely to succeed on the merits.
"It seems to me the public policy behind effective enforcement of the open meeting law is so strong that it does outweigh the interest, at least at this time, which may exist in favor of sustaining the validity of the (law)," she said
It is hard to see how there is a likelihood of success on the merits, particularly if the Judge found no clear violation of any law or Senate Rule, but merely some vague conception of "public policy." The Senate clerk already has stated that the procedures used complied with the Senate Rules, and Courts normally to not interfere in a legislative branch's interpretation of its own rules. And let's keep in mind, that no amount of notice would have made a difference, because every single Democratic Senator had fled to Illinois and was refusing to attend any votes.
As to irreparable harm, and a balancing of the equities, there was no substantive deprivation of rights. Rather, there was at most a procedural error (even that is not clear). It is hard to see how there would be irreparable harm when the law simply could be passed, as is, if noticed for vote next week.
I assume that the state will seek an immediate appeal to overturn the injunction. But should the state fail to get it overturned immediately, the legislature simply should re-vote, with more notice. Either the Democrats will run away again, or they will show up. Either way, the result is the same -- the law passes.
But if a re-vote is required, I suggest the Republicans include the police unions this time. The police unions have acted dishonorably throughout this controversy, from an off-duty police union member encouraging civil disobedience and suggesting that the police would refuse to follow direction from the legislature, to the statewide police union which sent intimidating letters to businesses demanding support for the unions.
The ante has been upped by union intimidation tactics, and an unfounded judicial decision based on "public policy;" the Republicans should meet it and one-up it.
Update: Via a reader in Wisconsin, comes this story from JSOnline regarding complaints by Republican State Senator Glenn Grothman (the person who was cornered by protesters outside the Capitol in this widely viewed video) that the Madison Police were not protecting M&T Bank, which is a focus of boycott efforts because executives donated to Gov. Walker's campaign:
Sen. Glenn Grothman (R-West Bend), who had a run-in with a protester this week at the M&I Bank branch across the street from the State Capitol, says he believes the Madison Police Department is not "protecting the bank the way they should."Per the story, the Madison Police deny the charges.
Grothman made the allegation to the Journal Sentinel in describing his experience on Tuesday with a protester whom he said gave him a bear hug. Grothman said the incident was not malicious, but "socially inappropriate."
But Grothman said there was a bigger story involving the Madison Police Department, which is unionized, and the bank itself.
"The story isn't me. The cops are not protecting the bank the way they should. You have that threat out there from the police union about boycotting these companies. But implied, or one could imply in there, that police won't protect these companies," Grothman said.
Grothman said he had been told by M&I bank employees that police were slow to come or ignored when they were called to assist at the bank. The bank has been the site of sporadic protests by people who charge the bank's executives with supporting Gov. Scott Walker and his budget policies.
"I think there's a valid question as to whether the Madison police force is mad at M&I. The employees think they are mad at the M&I," Grothman said.
And, while many pundits keep invoking the 24 hr. and 2 hr. requirements (sec. 1984(3)) of the Open Meetings Law, it seems pretty clear those time requirements do not apply, because per the wording of the statute legislative rules rule:
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.I haven't seen the legal briefs, but given the plain wording of the statute and the ability of legislatures to interpret and apply their own rules, the legal arguments adopted by the Judge seem frivolous.
And, thanks to reader Dad29 for the link to this analysis by Marquette Law Professer Rick Esenberg, who expresses doubts similar to mine as to the ruling (emphasis mine):
I would advise those who are tempted to break out the champagne over Judge Sumi's decision enjoining publication of the budget repair bill to put it back in the bucket. There are problems.
First, it is not clear that she had the authority to enjoin publication of a bill. There is some Supreme Court precedent holding that a court may not enjoin publication of a bill because of concerns regarding its constitutionality. The idea is that a law is not enacted until it is published and its constitutionality cannot be determined until it's enactment is complete and someone has been injured by its threatened or actual publication.
Second, while I don't know how Judge Sumi concluded otherwise, there is, as I explained here, serious doubt as to whether the duration of notice provisions of the open meeting law applied here. It seems to me that concluding that it did requires construing a legislative rule in a way that seems to - in conjunction with the open meetings law itself - suggest otherwise.Update 3-19-2011: The written opinion has been released. The news reports above hit the highlights, and there is nothing in the opinion which changes my view.
Third, if it applied, it may well have been complied with. If the legislature can show that twenty four notice was impractical, it may be that the two hour minimum period was complied with or that the notice was so close to two hours so as to raise any violation de minimis.
Fourth, even if the law applied and was not complied with, invalidation of the action taken is not mandatory. It is far from clear that the balance tips in favor of invalidation given the extraordinary circumstances of this bill....
The key isssue, to me, is that the Court still wants to second-guess the legislature's own interpretation of its rules, which provides an exemption from the Open Meetings Law. The Judge stated that "Neither party has cited any rule that would have overridden the clear provisions of the notice requirement in §19.84." But that is not the standard in the statute. The statute, quoted by the Judge right before that sentence, states "“no provision of the Open Meetings Law 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.” The statute quite clearly allows the legislature to be governed by its own rules, not the statute, so the question becomes whether the legislature itself (for example, through the Clerk of the Senate) or the court determines whether legislative rules have been complied with, a question the court does not address.
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