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Friday, April 1, 2011

The Legal Mess In Wisconsin Continues

There is a hearing today before Judge Maryann Sumi in Wisconsin.  The hearing was supposed to be a continuation of the testimony as to whether the budget bill had been published.

As detailed by JSOnline, at the end of the hearing Tuesday, Judge Sumi on the record declined to rule on the issue  of publication, stating as follows:
"That is yet to be determined," she said Tuesday. "I hesitate to do that at this point because testimony is not closed and argument is not closed."
And in fact, Judge Sumi struck from the form of Order on Tuesday a paragraph declaring that the budget bill had not become law.

Nonetheless, as JSOnline notes, yesterday Judge Sumi issued an order finding the bill had not become law despite hearing no more of the testimony and argument she said was needed.
No testimony has been taken since Sumi said that, and Sumi's order gave no explanation of why she had decided to rule now.
The Order Judge Sumi entered yesterday did not in any way explain either this contradiction or the legal and factual reasoning behind the ruling as to publication.

Not good.

The hearings continue this morning.

Updates:  I will not be able to follow the hearings this morning, but I recomment the twitter feed of Jessica Arp, a local news reporter who is in the courtroom.

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  1. I'm not usually a champion of judicial oversight, but Sumi might have changed my mind.

  2. Given the fact that she has now specifically issued an order (not an opinion, or even any supporting findings) somehow denying that the Legislative Reference Bureau’s actual publication of the law was a "publication," there is a much better opportunity for either an appeal of that order, or the pursuit of some other form of remedy which the Administration can now pursue.

    With regard to the actual publication (which she somehow concludes did not take place), the salient facts are really indisputable.

    They are facts that she has completely ignored.

    1) On March 14th, the Sec’y of State performed his duty, in accordance with Wisconsin Law, of specifically designating March 25th as the date of publication, which date was 10 days after enactment, and therefore in compliance with Wisconsin Law.

    2) That designation was made in writing, notifying the Legislative Research Bureau, of their duty to publish the law.

    3) In accordance with Wisconsin law, the Legislative Research Bureau was and is the appropriate governmental agency charged with the actual duty of so publishing all laws that are passed in Wisconsin.

    4) On March 25, 2011, the LRB did, in fact, publish the law.

    5) Publication, in other words, was thereby accomplished.

    It seems to me that there are really two primary legal questions that she should have addressed before issuing any "order" or even an opinion or findings claiming that publication somehow did not take place.

    The first is, what legal authority, if any, does the Sec’y of State have to rescind an action he has already taken in compliance with state law, i.e., to "undo" the actual performance of his duty to designate a date on which duly passed legislation shall be published?

    At no point have I heard about or read anything regarding any such authority on the part of the Sec’y of State to subsequently countervail his own ministerial actions, once performed. Without conceding that he has any implicit authority to do so (I find it hard to imagine he does), even if implicitly he has any such authority, what is the test for its exercise?

    The second general issue is, what, if any, jurisdiction (power to act) does a court have to interfere with, and/and order the non-performance, or recission of a constitutionally-based duty?

    This is a particularly significant issue where, as here, that constitutional duty is expressly consigned to the Legislature for resolution, and, thereupon, has been assigned by law, to the performance of specified acts that are required to be undertaken by representatives of the two other coordinate branches . . . the Sec’y of State and the Legislative Research Bureau.

    Note that there is not only a constitutional requirement that all laws be published before they are "in force," [Article IV, Section 17(2)] but there is also an express Wisconsin constitution requirement (adopted in 1979) providing that all laws are to be published in a speedy manner, and which consignes the constitutional duty to perform that duty to the Legislature!

    "The legislature shall provide by law for the speedy publication of all laws." [Article IV, Section 17(3)]

    Her order, in other words, is arguably violative of the Wisconsin constitution.

    Even very recent Wisconsin Supreme Court decisions have express considerable deference to the separation of powers, and the concomitant commitment of duties and obligations to the other branches.

    The recent (2009) case of Milwaukee Journal Sentinel v. DOA is a very good example.

  3. @conservative generation April Fools Joke? . . . or did you instead mean to say that you are usually a champion of judicial oversight, but Sumi might have changed your mind?

  4. I am following the Twitter feed and am completely blown away. It appears the Court is calling as witnesses the Senate Chief Clerk and his staff for questioning about Senate procedure in passing the Act. Unbelievable.

    Does Wisconsin not recognize Parliamentary Privilege?

    Where is the Senate's legal counsel? He or she should be intervening on behalf of the Senate to block the testimony of any employees of the Senate.

    This boggles the mind.

  5. This is just a sideshow. It matters little what this judge does. It matters greatly if we can get enough Prosser supporters to the polls on Tuesday. That is what will decide the fate of this law, and nothing else. WI is in real danger of becoming a judicial oligarchy, and an activist liberal one at that.

    Call your WI friends and urge them vote. Ask them to call their friends and neighbors. We must not lose this.

  6. or did you instead mean to say that you are usually a champion of judicial oversight, but Sumi might have changed your mind?

    Seems to me the comment stands very well as written.

    Or are you saying that you approve of the way Marilyn Sumi has illegally attempted to hijack Wisconsin state government?

  7. Excellent post Tochilus. I wish someone could have explained this to Rachel Maddow earlier this week as she attacked the Wisconsin Senate on her program for apparently violating the TRO by ordering the LRB to publish the law. For some reason I doubt that Rachel Maddow has even read the TRO.

  8. @trochilus: Thanks for that excellent post. Question. Regardless of the constitutionality of Judge Sumi's actions, it seems to me and many others that this is an effort to keep this issue tied up in court. Is there any avenue that might prevent this? (If this sounds like a dumb question, it's because I am not an attorney).

  9. @Darth Venomous I think it should be very clear from a number of my comments, on this and prior threads, what I think of the way Judge Maryann Sumi is dealing with this issue.

    I was just confused about the logic of the first comment posted here.

    It said, and I quote:

    'I'm not usually a champion of judicial oversight, but Sumi might have changed my mind."

    Logically, that suggested to me that, contrary to his prior view, @conservative generation was now becoming a fan of judicial oversight as a result of observing the actions of Judge Sumi!

    I didn't think he really meant that, hence my question.

    @Pasadena Phil I agree that it is not only an effort to keep it tied up in court, but it also gives at least an appearance of a possible concomitant effort on the part of the judge to engage in a political effort to try to force the Walker Administration to redo the legislation, in hopes that in the wake of the ongoing "recall" efforts and intense media pressure, a sufficient number of GOP members will fold and not go along. In my opinion, she is really straddling the line.

    I don't live in Wisconsin, and I am certainly not qualified to address any legal issue in that state, other than just as an observer and commenter from a good long distance away. I wouldn't even pretend to offer any party any advice.

    But, other than awaiting what clearly (and quite disturbingly) appears to be a preordained outcome by Judge Sumi, I did notice, in looking at the Wisconsin Statutes, that there is an "extraordinary remedy" available for consideration by parties . . . a "Writ of Prohibition", by which a party or parties may actually seek to compel a court to "desist and refrain" from further proceedings, including the ability to seek to obtain a permanent restraint. I'm just kind of wondering out loud if anyone has taken a look at it?

    On the face of it, however, I'd add that it looks to be very difficult to meet the threshold test for seeking such a remedy.

    Again, I’m just an observer here; not in any way offering any advice to them, nor could I.

  10. I was just confused about the logic of the first comment posted here.

    (nods) I could be the one in error here (wouldn't be the first time, lemme tell ya). Admittedly, the Prof's blog isn't an everyday read for me (available time being at a premium 'n all); hence, sometimes the kmans, barfos, nishners, etc, can be difficult to spot.

    Looks like I dropped the ball on this one. Apologies.