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Wednesday, March 23, 2011

Waiting For The Wisconsin Court of Appeals

The Wisconsin Attorney General filed an emergency application requesting that the Wisconsin Court of Appeals vacate a Temporary Restraining Order issued by Judge Maryann Sumi prohibiting the Secretary of State from publishing the budget repair bill passed by the legislature and signed by Gov. Scott Walker.

The application raises several issues which go to the merits, but there is one procedural issue which likely will be the key.  The full response of the Dane County District Attorney General is due at 4 p.m. today (Central Time), but the Court of Appeals ordered an expedited response on a single issue, which was filed yesterday by the D.A.

The issue on which the Court required an expedited response was whether  the courts had the power to stop the publication of a law, which is a ministerial task the Secretary of State performs.

The issue goes to the heart of separation of powers, because Judge Sumi effectively prevented the legislature from making law.  This is quite extraordinary, and contrary to prior Wisconsin precedent.

It is one thing for a court to rule on the legality of a law; it is quite something else for a court to prevent the law from being made.

Think of it this way in terms of the Obamacare health care mandate.  The law came into effect, and now courts are ruling on the constitutionality of the law.  Had a judge felt it was warranted, a judge could have issued an injunction preventing implementation of the law -- but no one ever suggested that a court preemptively should have interfered in the legislative process and issued an injunction preventing Obama from signing the law, or the clerks of the House and Senate from taking whatever ministerial steps they take to pass the law along to the President.

The fact that the Court required expedited briefing on the issue is a sign that the Court gives the issue great weight.

If the Court rules that Judge Sumi had no power to interfere in the legislative process, then the Court need not address at this time the remainder of her ruling.  If that happens, and the Court vacates the TRO on the ground that court acted prematurely and does not rule on the other substantive aspects of her ruling, expect the parties to be back in front of Judge Sumi next week.

Since the Secretary of State was schedule to publish the law on March 25, expect a Court of Appeals ruling by tomorrow, if not sooner.

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  1. I normally don't like stating the obvious, but her name is Soo-me !

  2. Thank you for clarifying this point, and keeping us posted on the status. Now that the "drive-by" MSM has moved on, no news trickles down about the appeals, the legality or legitimacy of the court ruling, or whether the law will stand.

    Wisconsin has won the battle, but leftists will NEVER quit, and will use ANY means necessary to get their way. Kinda like a 2 year old. But they have deep pockets behind them.

  3. Goodland v. Zimmerman is good precedent and on point re process -- but a different part of the process and predated by decades the intervening Open Meeting Law, which is grounded in the Wisconsin Constitution (as Sumi noted). And the Open Meetings Law is hallowed in Wisconsin -- as the AG himself notes in his guidelines to it. So the Court of Appeals ruling may be good reading, if it finds a way to thread this needle so narrowly as to not gut this law that governs meetings at every level of government in the state, every state agency, every state campus, etc. Hundreds of municipal officials have to attend teleconferences with the AG on this law, tens of thousands of employees have to take the teletest on it to do their jobs, etc. Major changes in interpretation of the Open Meetings Law would mean a lot of work for the AG and for thousands of other Wisconsinites.

    And as the law was won by the media, imagine the howls -- and more lawsuits to entertain us.

    One also wonders whether the court also may wander into intriguing side discussion as to whether an AG charged only with defending the law can find himself on the other side in this case, or whether he can attempt an end-around that by putting another official's name on the petition but not even asking the official first.

    All of this is quite entertaining but was quite unnecessary, if Senator Fitzgerald had only waited a day after the usual notice. There was another day in the session before he and others went on vacation. Even a wait of only two hours would have strengthened his case (if the court then would have come down harder on the question of an emergency). Frankly, he would have done better to not post the meeting at all and argue its exemption than to admit that it applies by posting notice but not in time, or had he had his aide time-stamp the lone notice, or had he just waited a few more minutes to start the meeting. Haste makes such waste.

  4. Expect the Court of Appeals to uphold the injunction. This will go to the WISupremes.

  5. I respectfully disagree with Deekaman.

    The Court of Appeals do not want to look as out of touch with the justice system as Justice Soo-Me.

    The law will be published tomorrow and therefore become law.

    I could be wrong and if I am just look for Gov Walker to have a 'do-over' and get it done.

    For anyone to think this was done in 'secret' and that people were kept out of the loop by some secret meeting is just too mentally challenged to offer opinions.

  6. Chuck, what is determinant is the definition in state law of what you call a secret meeting. There is not an argument that the meeting was a secret. The argument (the filings are quite good reading) is that the meeting was held without sufficient notice required by state law -- as well as that the room was insufficient for attendance by media and others in the public who did know about the meeting with less than the two hours' notice required in the event of an emergency (also a question of the court) or the standard 24 hours' notice under state law. Of course, the argument also is complicated by other factors, but I hope that this helps to clarify the definitional debate.