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Tuesday, March 29, 2011

Wisconsin Judge Expands TRO, Prohibits Implementation of Budget Bill

Based on reports from inside Judge Sumi's courtroom, it appears that she has issued an expanded TRO ruling that the budget bill is not in effect and was not "published" as required, and enjoins further implementation.

Correction: Per local news reporter, initial reports that Judge found law not in effect were not correct. But TRO continues to prohibit Secretary of State from publishing, so it appears she is viewing the bill as not in effect yet, even if she did not explicitly rule.

Updates:  Per JSOnline:
A Dane County judge Tuesday blocked the state from implementing Gov. Scott Walker's collective bargaining bill.

"Further implementation of the act is enjoined," said Dane County Judge Maryann Sumi.

She noted her original restraining order issued earlier this month was clear in saying that the state should not proceed with implementing the law. The Walker administration did so after the bill was published Friday by a state agency not included in Sumi's earlier temporary restraining order.

"Apparently that language was either misunderstood or ignored, but what I said was the further implementation of Act 10 was enjoined. That is what I now want to make crystal clear," she said.

She noted she has not yet found that lawmakers violated the open meetings law, but noted the Legislature could resolve the matter by passing the bill again.
The Amended TRO now is available.  It is only two pages long, and apparently was prepared as to form by the Democrats (this is common in court cases that one side prepares the form of order), because Judge Sumi struck out the portion as to publication:

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  1. Wow! Judge Sumi thinks she is not a separate branch of government.

    She seems to be clutching at the straw of a do-over by the legislative branch to get her 'off the hook'.

    Don't think that's going to happen.

  2. the lefties like this corrupt judge want to the legislature to try to pass the bill again. That way they can once again storm the capitol and try to wreak their un-American havoc and intimidation on the legislators again.

  3. Lefties will always be lefties...expecting them to become decent humans is like expecting a scorpion to change.

    The GOP, however, continues to disappoint. Can the Wisconsin legislature impeach a judge for misconduct like the federal congress can? Since Sumi clearly should have recused herself, maybe it is time to go after her personally. After all, to progressives it is all personal anyway.

  4. So a county judge trumps a governor and a legislature? Where can I sign up to be a county judge?

  5. Read the state constitution, and see what Sumi sees: See the state constitution's balance of powers in requiring that actions of the legislature, bills, be certified not by employees of the legislature, the LRB, but by another branch, the executive -- i.e., the secretary of state -- to be put in effect, as laws. See also the state constitution's requirement that the action for a bill to become law is vested not in a legislative employee but in an elected executive officer (third-highest-ranking in the state), the secretary of state. See also that the state constitution defines the LRB's role in that "R," which stands for reference. Its role is to serve as a reference agency of the legislature by making laws available; its constitutionally defined role is not to make bills into laws.

    And remember that Sumi was appointed by a Republican governor.

  6. ..but TRO continues to prohibit Secretary of State from publishing.

    I don't think that dog will hunt. The bill has been 'published' just maybe not in the state's legal organ. I think Sumi just needs to put down the gavel and step away from the bench.

    The judge will soon become a footnote in history.

  7. Here's what I see after reading this site and googling a bit:

    County Judge Sumi issues an opinion which arguably constitutes unprecedented judicial overreaching; goes on vacation leaving a fundamental, controversial piece of Republican legislation in limbo during a fiscal crisis; returns and resumes meddling (and suggests that the legislature redo its work).

    Meanwhile an election for a swing vote on the state supreme court is going on. The county judge's husband has donated to the liberal candidate. The county judge's son is a union activist.

    Is that what WI voters see? Presumably we'll know in a week.

  8. The Wisconsin Constitution

    Enactment of laws. SECTION 17. [As amended April 1977]
    (1) The style of all laws of the state shall be “The people of the
    state of Wisconsin, represented in senate and assembly, do enact
    as follows:”.
    (2) No law shall be enacted except by bill. No law shall be
    in force until published.
    (3) The legislature shall provide by law for the speedy publication
    of all laws.
    In order for the legislature to create a law, the proposed law must be enacted by
    bill and be published. For some action to be sufficient to constitute publication, that
    action must be evaluated in light of the purpose publication seeks to achieve, i.e.,
    was the public provided with sufficient notice of the law that is being enacted or
    amended. The publication requirement is meant to avoid the situation where the
    people have their rights sacrificed by the operation of laws that they are bound to
    know, but have no means of knowing. Milwaukee Journal Sentinel v. DOA, 2009
    WI 79, 319 Wis. 2d 439, 768 N.W.2d 700, 07−1160.
    The state legislature cannot constitutionally adopt prospective federal legislation
    by reference. 63 Atty. Gen. 229.
    Article VII, sec. 21 [17] requires full text publication of all general laws, and
    publication of an abstract or synopsis of such laws would not be sufficient. Methods
    other than newspaper publication, under 985.04, may be utilized to give public
    notice of general laws.

    Section 35.095 (3) (a) has had different language in the past

    Up to 1981 it read.

    "35.095 (3) (a) Every law shall be published once in the official state paper within 10 working days after its date of enactment"

    Then from 1981 to 1991 it read.

    "35.095 (3) (a) The secretary of state shall publish every act and every portion of an act which is enacted by the
    legislature over the governor's veto within 10 working days after its date of enactment ."

    Then in 1991 it was changed to.

    "35.095 (3) (a) The legislative reference bureau shall
    publish every act and every portion of an act which is enacted by
    the legislature over the governor’s partial veto within 10 working
    days after its date of enactment.

  9. She has no jurisdiction over walker who was not a named defendant and in any event the case is now on the docket of the state Supreme Court and out of her hands.

    The state Court of Appeals cited the second point itself today when one of the original parties went to it for some action on the matter.

  10. Hey if Obama and Salazar can ignore a Judge, why can't Gov. Walker?

    I say he should keep implementing it. What is Sumi going to do, stop her feet and whine?

    I know, I know this isn't how things should be done but I'm tired of conservatives playing the game straight while the Democrats lie, cheat, steal and ignore the law and the constitution to keep their power.

  11. I really don't think a law has been written in any state, WI included, that gives the SoS the final veto over any and all legislation.

    The bill became law when Gov Walker signed it and the rest is just ministerial/clerical duties. Geez!

  12. As the Legal Eagle Esenberg 'splains it, (contrary to the wilfully blind "see here" Milwaukeean above), the SoS' ONLY responsibility is to designate a date of publication. Following his designation, Leg Ref Bureau publishes and it's all over. That's the law since 1991.

    SoS MAY publish the law, but that's irrelevant.

    Further, SoS may not (legally) rescind his designation of the date. And obviously, no County judge has the authority to halt publication of a duly enacted State law--except in the FantasyLand which is Madison.

    (Trust me. Dane County and Madison are, truly, separate planets from the rest of Wisconsin.)

  13. The conservatives in Wisconsin need some help here. The longer this drags, the greater the danger of the Wisconsin Supreme Court getting a justice who has clearly indicated a liberal bias. Instead of New Hampshire or Iowa, all those wannabe Presidential candidates need to be in Wisconsin championing a stalwart Governor.

    What's a Milwaukeean?

  14. Amazing that what is described as a blog about the law argues for ignoring a state constitution and an order of the court, dismisses it as a "county court" -- do commenters on a legal blog really not understand the term "district court"? -- and more here that shows inability or unwillingness to actually consult the constitution and statutes.

    Well, okay, I finally get it. I read that this was a thoughtful blog about the law, but someone was having fun. This really is a mock legal blog, a joke!

    Sorry for taking this blog seriously. Go on back to your silliness and mockery of the law, while I go on to seek a serious legal blog. Thanks for the helpful list ranking such blogs, so that I can find the far better ones!

  15. O.K., Milwaukeean, maybe you'll be missed. Next time, read for a while before posting, to sort of see the lay of the land. Then you will know whether or not your insightful comments will be appreciated. Or not. And you won't waste your time casting your pearls before us swine. (Alright, I'm swine, the rest of these people probably smell nice.) Professor Jacobson, I'm confused as to how such an excellent blog could come from somebody connected to Cornell. That runs contrary to my experience. Perhaps you just teach there, and you're not a graduate from there.

  16. Milwakeean said "while I go"

    Promise? I got $100, and a signed Alinsky copy of Obfuscators Anonymous that says you can't stay away.

  17. The governor should start giving out layoff notices pro-rated by the delay of implementation. Let Judge Sumi feel some heat for her actions.

  18. The GOP will never let the funhouse Demonrats get a chance to do another fleebag hotel stunt. My relatives from WI just had dinner with us tonight and I fear that the good citizens of Wisconsin are going to be disgusted by the leftist flimflammery, but at the same time perhaps deceived by the push-polls by PPP & other disreputable polling operations into thinking that the Supreme Court should have another Demonrat.

    Or at least not vote in the April 5th elections for the incumbent Republican. If this happens, the lamestream MSM will go bonkers and the brouhaha will continue all summer while recall petitions and other nonsense take away the focus from the real issues of the school unions' having still more power to negotiate than the SEIU has with the federal government.

    It's amazing how the Goebbels in the NYT, the Kellers and the Pinch Sulzbergers, seem to orchestrate the media side of the seamy union thugs & white house operatives doing their funding of all sorts of outside agitation in Wisconsin. That's what my teacher relative opined, anyway, and she's taught science in the Milwaukee public school system for decades.

  19. What I find so farcical about this whole thing is this: The duly appointed legislators voted created and passed this law. The court has no jurisdiction over that. they can't say "you can't vote on this law, nor can you pass this law". The way I understand it, she can only rule on if the law is constitutional or not and stop it from being acted on with an injunction; yet here, she actually says "you can't publish this law because ....well just because I say so!"
    my opinion? The democrats didn't want to be a part of the legislative process so they ran away. perhaps the next time, they'll stick around and do their jobs.

  20. A commentator at Volokh sums up the state of the law and the controlling authorities that apply to this matter: http://volokh.com/2011/03/29/meanwhile-in-wisconsin-another-tro/#comment-1164674

    MJW says:

    – What’s next? Judicial review of quorum calls six months after the fact? – FWIW, I recall looking at some of the few cases where judges pierce the veil and look at legislative conduct; and for some reason, “quorum” strikes my weak recollection as being the gravamen of one of the complaints.;

    You’re probably thinking of United States v. Ballin, an 1892 SCOTUS case. The decision was released after, and on the same day as, Field v. Clark. The Court considered the method used to determine whether a quorum was present, and whether a majority had voted for the bill. (The underlying question was whether the House could change its rules to include present but non-voting members in the quorum.) Because it uses very circumscribed language, Ballin suggests, but doesn’t unequivocally show, the Court can verify that the Constitutional requirement that the bill was passed by a majority of a quorum:

    The Constitution (Article I, Section 5) provides that “each house shall keep a journal of its proceedings;” and that “the yeas and nays of the members of either house on any question shall at the desire of one-fifth of those present, be entered on the journal.” Assuming that by reason of this latter clause, reference may be had to the journal to see whether the yeas and nays were ordered, and, if so, what was the vote disclosed thereby, and assuming, though without deciding, that the facts which the Constitution requires to be placed on the journal may be appealed to on the question whether a law has been legally enacted...

    In the case of Wisconsin, the rule was stated in State ex rel. La Follette v. Stitt, 338 N.W.2d 684 (1983): “Unless the claim is that the legislative procedure violated some constitutional provision or right, this court will not, under separation of powers concepts and affording the comity and respect due a co-equal branch of state government, interfere with the conduct of legislative affairs.” In State ex rel. General Motors Corp. v. Oak Creek, 182 N.W.2d 481 (1971) the Wisconsin Supreme Court voided a statute because the yeas and nays weren’t recorded, so they could almost certainly void a statute passed without a quorum. In distinguishing Stitt from an earlier case, the Court strongly indicates it would not void legislative action due to a violation of the open meeting law:

    This is consistent with this court’s decision in State ex rel. Lynch v. Conta, 71 Wis. 2d 662, 239 N.W.2d 313 (1976). The issue in that case was whether certain legislators had violated the open meeting law and whether they could be subject to forfeitures for such violations. The case did not present the question of the voidability of legislative actions taken in violation of the open meeting law. We hold that we will not invalidate a legislative action unless the legislative procedures or statute itself constitutes a deprivation of constitutionally guaranteed rights.

  21. This is the most serious separation of powers issue I have encountered in my adult lifetime. There is no precedent to support the position that the judicial branch has legal authority to interfere with legislative process of enacting a law or the executive procedure of signing an Act. Judge Sumi has not one leg to stand on for her interference in the functions of the legislative and executive branch. Impeachment hearings are appropriate.

    Professor, is the TRO you published the complete order? By its own language it applies only to the Secretary of State. It does not bind the rest of the Administration from implementing the Act. Judge Sumi seems to be operating on the presumption that the Act is not in effect, but if that is her presumption why did she scratch the paragraph on the second page of the TRO? She appears to be utterly incompetent.

    Governor Walker and the legislature should procure a formal opinion from the Attorney General regarding when an Act enters into effect and proceed without regard to the TRO. The legislature should file a separate lawsuit to compel the Secretary of State to publish the Act, then should initiate impeachment hearings for Judge Sumi.

    The Wisconsin Bar must be mortified at the shocking incompetence on display throughout this entire debacle.

  22. @Blythe_masters - that's the entire Amended TRO but you have to read it together with her comments from the bench in which she threatened sanctions if there were any further implementation of the law by anyone.

  23. I would love to see Walker and the GOP in WI call Sumi's bluff and pass the law again. We know at least one dem has said he won't run out again, and is working on legislation to keep fleebagging from happening again. Call their bluff, make them vote on it, and take this ridiculous judge out of the equation entirely.

  24. @ Professor Jacobson,

    Thank you for the confirmation. Yes, the verbal threat of sanctions from the bench is one of the many oddities of her management of the case. Precisely how would the good judge propose to enforce sanctions against members of the Administration who appear not to be parties to the suit and who, in any case, are explicitly omitted from the written TRO?

    And what to make of the bizarre scratching of the second paragraph? Does she concede that the act is now in effect? Has she simply gone mad? Does she not know how to draft a TRO?

    I reviewed the first TRO while writing this comment. Clearly, the judge drafted the first TRO without understanding the statutory framework relating to publication in Wisconsin and without an understanding of the mechanics of how publication is implemented. In short, she biffed it--she enjoined the Secretary of State from publishing the Act.

    Now she appears deliberately to be provoking Constitutional crisis in Wisconsin. Neither Walker nor the Wisconsin legislature can back down without ceding powers of their respective branches to the judiciary. The AG needs to intervene to issue an opinion immediately.

    Also, the Wisconsin Secretary of State has a duty to the Office to oppose this ruling. However, it appears he has been complicit in undermining the authority of his Office. If this is the case he should be impeached.

    Shocking incompetence at every turn.

  25. As noted in part by, @geoffb, above in the recent (2009) case of Milwaukee Journal Sentinel v. DOA, found here, the Wisconsin Supreme Court stated very clearly what the constitutional purpose of publication was, and is:

    At page 20:
    ¶32 Publication is the other requirement of Article IV, Section 17(2).

    Nearly, 150 years ago, we noted the purpose of the constitutional publication requirement is the protection of the people, by preventing their rights and interests from being affected by laws which they had no means of knowing.
    . . . .
    (my emphasis added)

    and, at page 22:

    ". . . However, although it is true that the public may have had the opportunity for input in the ratification of the agreement at the public hearings, and some citizens may thereby have been put on notice of the collective bargaining agreement's terms, the mere fact of a public hearing is insufficient to satisfy the constitutional requirement of publication. This is so because the purpose of publication is to give sufficient notice to the general public that the legislature has enacted new law. . . ." (my emphasis added)
    and at page 23:

    ". . . the publication requirement is meant to avoid the situation where "the people . . . have their rights sacrificed by the operation of laws which they are bound to know, but have no means of knowing . . . ." (citation in original; my emphasis added)

    At this point, given the publication of the full law by the Legislative Research Bureau, coupled with the significant notoriety in newspapers and throughout the media that has been given to that fact of such "full publication," it is really beyond risible for anyone to claim that the purpose of publication has not been met, just because the Secretary of State, for seemingly mischievous reasons, refuses to perform what is an important, but essentially a ministerial function.

    That notoriety, incidentally, has been more than occasioned by the non-stop squawking about it by Democrats and the unions themselves!

    But for a judge to use injunctive power to prevent an official from performing an essentially ministerial function, is turning the purpose of granting injunctive relief on its head. If, for example, a official were refusing to perform a statutory or constitutional ministerial function, i.e., simply refusing to perform their duty, a judge could quite properly order them to perform that duty.

    But ordering an official not to perform their statutory or constitutional duty, for the obvious purpose of thereby preventing an otherwise fully enacted law from going into effect, is simply an outrage.

    And by literally taunting the Republicans to pass the bill again via her comment that she had not yet ruled on whether they had violated the "open public meetings" law, strongly suggests that she has fully entered the political thicket, and is pursuing a strategy that seems suspiciously coordinated with that of the minority Democrats in the legislature.

    By the way, given their lengthy "frolic" in Illinois, and string of other dilatory tactics, one wonders what ever happened to the "clean hands" doctrine when it came time for the Democrats to seek equitable relief?

  26. I suspect that Sumi thought she would do her duty as a Democrat by ruling for the Dems on the meager issue of the two hour notice and the issue would never reappear in her court and be decided by the appeals courts. By moving ahead yo implement the law while the first-level appelate court dodged the case altogether, Walker left Dems no choice but to go back to her. At this point, i think she is just trying to appease them. The the lack of rhyme or reason to her rulings.

  27. @J. E. Burke actually, she has not expressly ruled on the open public meetings issue, but is instead dangling it politically in front of the Republicans, trying to taunt them into backing down and "repassing" the bill.

    She has only issued injunctive relief to stop the requirement of publication as a condition precedent to enactment, and has thereby prevented the law from going into effect.

    But I think you may be correct that she miscalculated the effect of her first ruling, and not just because her order failed to include the potential for Legislative Research Bureau publication within its scope.

    I'd agree that she probably did not anticipate that the Appeals court would punt; that the Administration would rely on any form of publication other than the Sec'y of State (i.e., the LRB publication); and that the Ds would thereby essentially be forced to go back to her.

  28. Regarding the Open Public Meetings issue:

    From their Open Public Meetings Law - -

    Wis. Stat. § 19.87(2) says:

    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.
    . . . .

    Ooooops! Could be that's why she is not ruling on the issue, but only blustering about it instead.