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Thursday, March 31, 2011

Judge Sumi Rules Budget Repair Bill Not In Effect

Judge Maryann Sumi has issued this morning a two-page ruling saying the budget repair bill is not in effect.  Via JSOnline:
A state law to sharply curb union bargaining by public employees is not in effect, a Dane County judge ruled Thursday, continuing the turmoil over a measure that sparked massive protests and prompted Democrats to boycott the Senate for three weeks

"Based on the briefs of counsel, the uncontroverted testimony, and the evidence received at the March 29, 2011 evidentiary hearing, 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," Dane County Circuit Judge Maryann Sumi ruled in a two-paragraph order.

This decision, without any reasoning, puts in context the warning Judge Sumi issued yesterday to attorneys in the case about making remarks which impugn her integrity.  Presumably Judge Sumi knew that this Order would be coming the next day, and also knew the political firestorm that would result.

Before speaking publicly about what is an extraordinary judicial interference in the legislative process, attorneys for the State will have to consider the import of Judge Sumi's warning.

Updates:  I find it very curious that Judge Sumi felt the need to issue this Order today, when further hearings are scheduled tomorrow.

As Ed Morrissey notes, this is the third version of the TRO in this case.

And, keep in mind that at the end of the day Tuesday, Judge Sumi refused to sign an order containing virtually identical lanauge regarding whether the law was in effect:

So how, with no new evidence, does she reach the legal conclusion that the law was not published? 

Perhaps it's just the passage of time to reflect on the issue, or perhaps it was frustration with what she saw as non-compliance with the first part of the order directing the Secretary of State not to publish and (some unspecified persons) not to implement the bill.  If it were the latter reason, then achieving compliance as to implementation would not require a finding of non-publication.

What a mess.  But I repeat myself.

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  1. How long, really, until the WISC steps in to end this?

    Too many pieces in limbo. The judge seems to be flailing about making a bigger mess of things, though everyone on both sides is already certain that an injunction will be issued. Her actions at this point seem more an angry reaction to the legislature not bailing her out of this mess than anything else.

  2. It's time for the impeachment of Judge Sumi. The Republicans have the majority in Madison. Go for it.

  3. The word "sumi" should be coined to describe the witless flailing about by fish out of water.

  4. We've seen this sort of legislation from the bench in Washington state with democrat lap dog judges.

    One sleeze ball county judge ruled that talk radio stations covering politics had to register that air time as a monetary campaign contribution. He was over turned 9-0 by the state Supreme Court... after the election was past.

  5. Section 991.11 provides a specific statutory exemption for acts which expressly prescribe the time when the act takes effect.

    Does anyone know whether the Act at issue includes a provision which expressly prescribes when it takes effect?

    One would assume that the Republicans in the Wisconsin legislature would have covered this base, but who knows. Wisconsin appears to be the land of mental midgets.

    It's Constitutional Crisis time in Wisconsin. Can judges in Wisconsin be removed, other than by impeachment?

  6. As Russell so correctly said, it is indeed time for Judge Sumi to be removed from the bench. The problem is likely that the GOP does NOT have the votes. Assuming that the Wisconsin Constitution follows the same basic format as the US Constitution, they would have the votes to impeach her in the lower house, but they would not have the votes to convict her in the upper house. It is really, really hard to successfully impeach a judge. Which of course is why the Left likes to go that route and let their chosen judges legislate from the bench. As a county judge, Sumi appears to lack jurisdiction, and also seems to be breaking Wisconsin law by injecting herself into the legislative process. She also has very well-documented conflicts of interest. And yet it looks more and more as if the Democrats and their union friends are going to win this one. Even though it was the Democrats who broke the law in every case. This is infuriating!

  7. When did judge Sumi obtain jurisdiction over the Governor who is not a named defendant?

    Since the Sec of State has no role in administering the law, how is anything before the judge a legitimate case and controversy?

  8. This situation as well as others bring to mind the famous uttering of one Albert Gore:

    'There is no controlling legal authority'. Or something to that effect.

    When the rule of law is subjugated by the political wishes of (wo)men, we are finished.

  9. Actually, it's a "do-over." Her last order--incompetently written, as usual--did not specify that the Act was "not law."

    Frankly, I'd like to see her attempt to jail the Walker people, because I would enjoy working on the jail-break.

  10. http://www.bartleby.com/73/939.html might be an interesting response by Walker to this order.

  11. Tuesday they are scheduled to take up the fiscal measures dropped from the original bill. Any reason they couldn't "affirm" this bills passage in some way? Sort of a quasi-revote?

    Absent that, since the Dems will be in the chamber to vote on the fiscal bill, why not attach these provisions through a late amendment?

  12. I'm not a lawyer, but it seems to me that county court is simply one step above traffic court. And if that is true, this judge is a tyrant who is way overstepping her bounds.

    If that activist judge herself recommended that the state senate simply re-vote on the law and be done with it, the remedy is very obvious, isn’t it?

    But since the legislature seems to be unwilling to do this, I think it would be reasonable to conclude that at least one Republican Senator from WI has become a turn coat.

    Is this not the essence of the story now? Where is the media - even the conservative media and blogs - on flushing this out? Why does the WI Senate all of a sudden seem to have a severe case of legislative constipation?

  13. Are they in session? I thought that they had started a recess a couple weeks ago and didn't plan to be back until next week. I'm not in WI so not sure who is at work and who isn't. If that is the case the GOP is doing a (as usual) horrible job of communicating that). Do you suppose that the Dems would show up for a special session to address this law (I suppose they might not have to)?

  14. For the WI GOP to continue skipping down a political yellow brick road in a reprise of Jack Haley's role from WOO is to turn their entire term into an embarrassing joke. They need to seriously beard this sumi-lion and finish up, or else resign and admit they can't hack it. Time's running out on them.

  15. Shouldn't she have recused herself in the first doggone place? She has deep ties to the unions I thought.

  16. Her title is County Circuit Court judge. As far as I know, that's a court of unlimited jurisdiction similar to the Circuit Courts in Virginia as opposed to the County Courts in New York, which are limited in their jurisdiction.

  17. I would take her indignation over a possible procedural error in posting a meeting notice a lot more seriously if she didn't keep botching up and having to rewrite her TRO.

  18. How long before we act to end Judicial Review--something that even conservatives accept as gospel-- but which was not envisioned in our Constitution (and against which Jefferson strongly warned)?!

    It's one thing to allow the Supreme Court to weigh in on things-- but it's another to let any little judge act as judge and executioner on a law. Separation of Powers dictates that Judges are to rule BETWEEN litigants USING the laws; not USE litigants and cases just to rule ON or AGAINST the laws!

  19. The time she took was to confer with the real plaintiffs and their counsel; Barack Obama, the national Unions and the DNC.

  20. Most discussion so far has focused on the important Wisconsin constitutional requirement [Article IV, Section 17(2)] that "No law shall be enacted except by bill. No law shall be in force until published."

    But pursuant to the 1979 state constitutional mandate, following immediately thereafter, is the additional requirement mandating the speedy publication of all laws, to wit: "The legislature shall provide by law for the speedy publication of all laws." [Article IV, Section 17(3)].

    The implementing statutory laws of the State of Wisconsin for that mandate [ variously Wis. Stat 14.38(10)(a); 35.095(3)(a) and (3)(b); and 13.92(1)(b)(4) ] currently specify that no later than the next working day, following his actual receipt of a passed act in his office, the Secretary of State is required to provide notice to the Legislative Research Bureau of the number of the act, the date of enactment and the specified date of publication, the latter of which may not be more than 10 working days from the date of enactment. Actual publication in any case is performed by the Legislative Research Bureau. The Legislative Research Bureau is required to publish every such act within that 10 day window.

    In other words, the Secretary of State does not publish the law! All he does is perform the purely ministerial duty of designating a specific date on which the law shall be published, and that publishing is, thereupon, performed by the Legislative Research Bureau!

    Most importantly in this case, Secretary of State LaFollette actually performed that ministerial duty on March 14th, specifically designating March 25th as the date of publication (10 days after enactment). The law itself was ultimately duly published on March 25, 2011.

    For many of the specifics, just read through this:

    Where does Wisconsin law give the Secretary of State any authority to rescind such an action?

    Is not his attempt to do so in this case, arguably unconstitutional?

    It looks to me like it was an improper attempt to rescind the ministerial function, one which he had already performed! Just because he used the judge’s initial TRO as a basis for attempting to rescind the notice (thereby giving himself political cover) is really beside the point.

    No wonder the Judge does not want to provide any findings supplemental to her orders! She would not be able to cite a convincing factual, (or I would suggest) even a coherent legal basis on which her orders are built!

    All of the steps for meeting the constitutionally mandated publication were met. The only real fly in the ointment was the subsequent interference of Judge Sumi, via TRO, now improbably declaring that what happened actually never happened! It was properly published!

    In the recent (2009) case of Milwaukee Journal Sentinel v. DOA the Supreme Court of Wisconsin very thoroughly detailed what the purpose of publication was and is. That purpose has been more than fully met as well!

    Perhaps at some point, the Wisconsin Administration might even give some consideration to seeking the "extraordinary remedy" of a Writ of Prohibition at 783.08 to put an end to this travesty.

  21. I was taught that if you don't like a decision, don't go whining about the Judge, take an appeal. Oh that's right they already did. And then they tried to withdraw it but the appellate court wouldn't let them. Seems to me like they're getting out lawyered.

  22. I'm not sure why Wisconsin goes to the expense of voting in a legislature and paying them for doing the state's business when they can have Judge Sumi just rule by fiat.

  23. Since Judge Sue Me now speaks in favor a redo by the GOP by passing the law again, I assume that the Dems and the unions have another set of delays ready to implement should that action present itself.

    Judge Sue Me is going to keep this court action in play until after the WISC justice election on April 4 when they attempt to oust Judge Prosser.

    The Appeals Ccourt has already refused to rule on the TRO, so is there no court in Wisconsin that is not activist?

  24. How can the judge's order nullify State statute that says that once the law is published by the LRB it goes into effect by operation of law the next day? It's too little too late in my opinion.

    I also don't understand why Judge Sumi is not facing ethics charges for not recusing herself from this case because of her very obvious conflict of interest since her son is or was a union official in the private sector. She cannot possibly be unbiased in this matter.

    Why can't the State move to replace Judge Sumi because of the facts that have come to light about her son's union organizing background and her husband's very large contributions to Democratic candidates? This is simple fairness.