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Friday, March 18, 2011

If Need Be, Re-Pass The Law And Include The Police Unions

A Wisconsin Circuit Court Judge has issued a Temporary Restraining Order preventing the publication (i.e. implementation) of the budget repair bill.

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.

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
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.

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."

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.
Per the story, the Madison Police deny the charges.

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.

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....
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. 

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.

Related Posts:
Wisconsin Police Union Members Threaten Insurrection
More Police Insurrection In Madison
Dane County (Wisconsin) Sheriff Dave Mahoney E-Mails Me 

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  1. This is why I hang out at this blog and why this blog was rated the top legal blog. Clarity.

  2. I was trying to "like" Pasadena Phil's comment, but apparently Blogger does not have this feature...


  3. Lucid as always. and yes- the police unions should be held to account for their actions.

  4. The firemen's union also got involved with the protest, they need to be included. These antics by public servants is utterly unacceptable. They serve the public, not the other way around, and now that Walker has crossed this particular Rubicon, he needs to go all in.
    And, since the fleebaggers are back in town, they ought to go ahead and pass the original bill.

  5. Precisely. Do a "Call of the Senate," lock those clowns in, suspend the rules, provide 24 hours notice, (Legislatures around the country suspend the rules, every day) and vote that sucker in.

    Violating the administrative rules to pass a law (presuming this process did violate the law, which is arguable does not, in and of itself, make a law invalid.

    This isn't rocket science.

  6. for the record, I read a letter the other day that the letter sent by the police was indeed sent by a lawyer and a police spokesman denounced it. It was well written and heart felt.

  7. Professor, I found the money quote to be by Judge Sumi:

    "Sumi said Ozanne was likely to succeed on the merits."

    Now, here is my question: could that not be considered prejudicial by the judge, herself, as she has not yet heard the merits?

    Did this judge set herself up for automatic appeal, no matter her decision on the merits?

    If she is elected, and not appointed, is it not possible to have her recused if she has taken campaign donations from unions?

    As to the Madison Police force, the bank should immediately file a law suit for failure to perform their duty and intimidation by threat. All businesses that received the letter written by the police union, threatening boycotts, should do the same. I would think a class action suit would be easy to organize on the behalf of Madison's business community.

  8. @Scott - Really? Here is a link to the letter and it is signed by the union leaders, not a lawyer. http://www.thewheelerreport.com/releases/March11/0310/0310wppa.pdf

  9. @Retire05 - no harm from ruling on likelihood of success, that is the test so the judge has to rule on it. As to Madison Police, M&T is trying not to rock the boat, and says in the article that it has good relations with the police.

  10. Sorry professor here is the link. http://minx.cc/?post=313496. I may have not gotten the story exactly but I like to give credit when its due.

  11. @William A. Jacobson - Southern Poverty Law Center Silences the TRUTH...AGAIN! See headline @ http://www.AmericanPatrol.com

  12. Hey, Professor, how do you feel about Cornell University allowing the Center for Strategic Research, an arm of the AFL-CIO, to give classes on how to become a "strategic researcher" or in plain terms, a corporate spy for the purpose of "helping leaders and members gain a clearer understanding about corporate structure and finance and identifying stategic ways to prevail agains those who oppose justice on the job and in our communities"?

    And not only is Cornell University allowing the AFL-CIO to give this week long course on campus, it is a credit course.

    Wonder if the SEIU goons that are now the defendants in a case filed by SodexoUSA, because the SEIU used intimidation tactics, took that course.

  13. First of all, just because one works for the government, one does not give up their constitutional rights. The police and their unions have a right to voice their opinion and cannot be punished by the government for doing so.

    If work rules were violated, than the employer can take action but for the governor and state legislature to now include them in the bill would be violating the officers and unions First Amendment rights as the mesage from the state government would be: you want to speak, we will show you. That is wrong.

    Second, as for the police and enforcement issues, they do not have the resources to be everywhere. There is in total 400 cops for the whole city. Guard the banks, fine, but remember, there are other things that the polcie must do such as guard everyone else.

    Madison PD is not a large police force such as the NYPD, who can throw numbers at a problem. The NYPD could put 1,000 officers at the demonstrations and other vulnerable sites such as the M&I banks and that would not even be 3% of their total force. Madison to allocate a mere 100 officers would be nearly 25% of their department and with patrol duties, traffic duties, court appearances, etc. there is not the man power to deal with the situation as everyone would expect them to do.

  14. Wonder how this poor excuse for a judge would've ruled on a challenge to legislation that was "DEEMED" to have passed ...

  15. Completely without Merit. Quoted from Senate Rule 93

    Senate Rule 93 (2)
    (2) A notice of a committee meeting is not required other than posting on the legislative bulletin board, and a bulletin of committee hearings may not be published.

    Senate Rule 93 (3)
    (3) The daily calendar is in effect immediately upon posting on the legislative bulletin boards. The calendar need not be distributed.

  16. obpopulus, if the police want to protest the actions of the Wisconsin congress, on their own time and dime, they are free to do so.

    They are NOT free to send a letter to Wisconsin businesses threatening to refuse their duty to "protect and defend". They took an oath to do exactly that, and if, due to union loyality, they refused to do their jobs, or use their authority to intimidate, they can be fired.

    This is what should happen. If the police union official, and the rest that signed the intimidating letter, are active members of the Madison P.D., they should be charged with a crime under the standards we have in the federal court system.

    What Walker, and the Republican Congress should do now that they have a quorum is to simply pass a right-to-work bill that would include ALL unions in the state of Wisconsin.

    End of story.

  17. I think every state should pass a law that no person who is paid from tax revenues may be paid more in combined salary and benefits than the median taxpayer's combined salary and benefits. The only exceptions would be for individual positions that merit being paid more than the taxpayers - in the opinion of the taxpayers themselves - as evidenced by a direct vote by the taxpayers approving that yes, this person can make more than we do. Then they can bargain all they want but all they can really do is bargain their entire salary structure, from the newest hire to the highest director, up to the cap, unless they want to go to the taxpayers and explain why they deserve more.

  18. Wasn't it against the rules for the fleebagger Dems to go hide in another state rather than do the jobs that they get paid to do?

  19. @Nobody, I *really* like this idea.

  20. You know they've already thought of rescheduling a vote with the proper notice. But they aren't doing it. Probably because the votes aren't there anymore. That's why they had to pass this thing in such a rush before -- they had to get it through before cooler heads prevailed.

  21. A few thoughts.

    First off, the judge lives in (and gets elected in) The Most Entitled County in the Universe. That's the backdrop.

    Second, as has been observed, her ruling is seriously flawed under Legislative rules.

    Third, SCOWI has plenty of precedent disallowing circuit clowns from TRO'ng laws on 'procedure.'

    Fourth: the Pubbies will not re-convene b/c no matter HOW they pass the law the local Commie DA will go right back to the judge and get another TRO. They'll find something, perhaps an objectionable carpet-color in the hearing room....

    The judge did NOT issue a permanent ruling for a reason: she's on vacation for a week. Her hope is that Appeals will not accept the case until she issues a final, which she will delay until the Second Coming, of course.

    I wish I were a Liberal so I didn't have to bother obeying laws--starting with concealed carry....

  22. To retire05:

    The letter is from union leaders of differing professions acting in their scope as union leaders. I do not believe that since one is a union leader for a public sector union that one cannot voice their displeasure with legislation.

    Nowhere in the letter does it say that services such as fire or police will be withheld. The boycott that they do speak of is that their members will not patronize that establsihment, M&I bank. Perfectly legal and under the circumstances, reasonable. If you will not support us, then we will not give you our dollars.

    This is why we have a First Amendment right so one does not end up in prison for voicing their opinion.

  23. Also, from another LawProf:


  24. "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."

    It's not as if La Follette is foaming at the mouth to sign the bill.

    Doug La Follette is a true political hack who has traded on his famous last name for 30 years in order to get elected again and again to a post, the duties of which include, according to the Milwaukee Sentinel, "keeping the official state seal clean and shiny." The Sentinel goes on to describe La Follette's job as a "combination maid, town crier and file clerk."


    To give you an idea of his politics, he was an original organizer of "Earth Day." In 2003 he was elected to the Board of Directors of the Sierra Club. In that vein he wrote a book on "Saving Planet Earth" in which he reportedly encouraged readers "to use the courts and sue government agencies to get their way."


    In 1985 he tried to bring then Sandinista President of Nicaragua, Daniel Ortega, to Madison for a "visit." The year before that he was "scolded by the Governor" for "lending state-financed office space and telephones to a pro-Sandinista group."

    Does anyone out there really believe Doug La Follette is a disinterested party in this current controversey?

    Does anyone believe there is an unbiased, elected, non-partisan judge in the city of Madison, Wisconsin?

    (Oh, by the way, Judge Sumi's husband is a Madison attorney specializing in environmental law.)

  25. You forget, even if they re-voted and passed the law, a liberal Dane County judge would always find another excuse to void the law. A conservative Supreme Court judge has to be re-elected in early April to have a majority. Otherwise a liberal controlled court will veto every Gov. Walker bill for the next 4 years.

  26. By the way, Judge Sumi is the same judge who shot down the Madison School Districts effort to force striking teachers back to work.

    Judge Sumi "denied the restraining order request, saying she was not convinced the district's argument would succeed as the suit moved through the legal system.

    "Sumi said there was not enough evidence to show the work stoppage is a strike under state law. She said the district made a more compelling argument that it has suffered irreparable harm in lost classroom time, but that also fell short."


  27. Speaking of things we haven't heard, a friend posted this on FB today which was really succint plot summary of the back story on the WI conflict, and why justice has to be served on many fronts. If this isn't appropriate for this discussion, I hope there will be one where this can be addressed:

    "Wall Street Investment Banks sell junk real estate stocks to Public Employee pension funds. The funds go broke. States are left holding the bag. Banks receive taxpayer bailout. Funds and states get no bailout. Wall Street Banks yell "deficits are evil" and fund politicians who blame school teachers for their cushy pensions (they all drive Porsche's don't you know)."

    And info added by another friend:
    "The recently elected republican gov of Ohio is citing his Lehman bro Wall street executive experience. He is complicit in the Lehman Bro's debacle and the crash of our economy. The weasel should be in prison."

    Very curious what, of anything you all might have to say about this. Thanks

  28. Yes, re-vote, include police and fire unions, since they want solidarity with their union brethren. Require referendums on pay increases above the Consumer Price Index, to be paid for by the union which would benefit from said raise. How about a website listing the wages and benefits of every public employee?

  29. Others have suggested that one of the reasons why the fleebaggers bolted in the first place was to buy time for the local school boards and municipalities to negotiate extensions to existing contracts. In other words, to nullify Walker's entire plan.

    This injunction buys the school boards and municipalities a bit more time to continue to pick the pockets of the private sector and undermine Walker's plan.

    I'd estimate the probability that new businesses will consider re-locating and bringing new jobs to Wisconsin now approaches 0%. They've now witnessed an activist judge intentionally misinterpret a statute for polical purposes; law enforcement officers not only encourage civil disobedience but ignore court orders and allow mobs to occupy the capitol; and teachers who set examples to students that it's fine to engage in an illegal strike and lie about being sick if it helps achieve a personal goal.

    Wisconsin will be lucky to hold onto its existing business and tax base, let alone attract new ones.

  30. I'm shocked, shocked that the Wisconsin police are not protecting the bank that they themselves are actively engaged in extorting and intimidating.

    I just can't believe that the police have not arrested and charged their own police union for its extortion.

    Its not as if they were stupid enough to write the whole thing out and then sign it. Oh, wait...

    BTW, the Firefighters Union also signed on to that extortion letter that was then sent around to the list of Republican contributors. The firefighters were also willing participants in the mob violence at the capital. I agree, they should re-pass the bill with full notice, now that the Fugitives have returned. Pass the original bill but tack on an amendment to include ALL of the public unions that were originally excluded. You are correct, they have dishonored themselves and don't deserve any exemption.

  31. This could all work in our favor:

    Open meetings law explicit that it is overruled by senate rules.


    Senate rules explicit no notice required for special session


    Inescapable conclusion law is valid.


    Excellent talking point that even rabid lefty activist judge who tried to hijack process forced to admit law is completely legal.

  32. Speaking as one who worked in the legislative arena for several years, Senate (or House) rules are not subject to things such as the Open Meetings Act (or similar).

    In fact, they're not subject to anything other than what the majority of the members of that body decide what they're going to be subjected to.

    We had a dire budget situation one time where our actions would've violated Senate rules. So, what did we do? Got enough votes, changed the rules before we did anything and then rammed it through anyways.

    The minority screamed. The majority yawned. Life went on.

    It happens all the time. People just don't know about it unless it's a very, very high-profile subject like this.

    Smarter minds than mine have weighed in, but from my perspective this is pretty weak tea.

  33. I'm not getting too worked up about this delay - and that's all it is. Unfortunately, it seems like every law Gov. Walker tries to pass is going to have to clear this liberal judge's desk first. What a joke. Local talk show host, Mark Belling, said it best (paraphrasing from memory):

    'If a Republican Governor tried to pass a law that says, "1 + 1 = 2", these liberal Madison judges would try to block it.'

  34. To add to Vinny's comment:

    here's the cycle. The lege will pass whatever law. Some liberal judge will block it. Union money will elect a new liberal Supreme Court judge in the summer. The Supreme's will issue a ruling that basically says, "Union bargaining rights are covered by the UN statement of human rights and no action of the Lege or the Governor can ever abridge them ever." It's coming.

  35. There is an election for a Supreme Court WI judge coming up on April 5th... looks like we won't have to wait much longer to find out if anything will get done over the next 4 years.

    On the ballot is the incumbent 'conservative' (as in applying the law) Justice Prosser. Wisconsin NEEDS Prosser to retain his seat. Without a 'conservative' majority there is almost no hope for ANY meaningful reforms.

    The liberal running against him has absolutely ZERO experience to be a Supreme Court justice. Unfortunately, that doesn't exclude her since she's a liberal. Geez, where have I heard that story before...

  36. In light of Stewart C's comments, I say that we just throw in the towel on Wisconsin. Just let 'em have their People's Republic of Wisconsin and elect the fat pig Trumka as Governor, or Il Duce, or Fuehrer of Wisconsin. Let him put on lavish parties in the Gov's mansion and invite all his thug friends over for a big feast at taxpayer expense. Then we can watch while the entirety of the middle class, farmers included, pick up and leave for greener pastures like say, North Dakota where there's business other than government business. Then all those progressives can just get fat and happy as they please, but it won't last long with no tax base to support them. I'm just sayin' ... Trumka looks like he could stand to lose a little weight.

  37. For those of you who wish that the cops and fireman be included, a good read:


  38. So many comments based on so little, basic research.

    Sumi is not a liberal; she was appointed by very conservative GOP governor Tommy Thompson.

    And the rules of neither the Senate nor the Assembly apply, because the meeting was not of either body. It was a joint conference committee from both bodies, and the legislature did not exempt such committees from the Open Meetings Law -- which is in the state constitution so carries considerable weight.

    And even the rules of the bodies above never allow the Open Meetings Law to be ignored, only amending when "impractical or in an emergency" -- neither of which applied in this case -- the notice from the usual 24 hours to two hours.

    The defense admits that notice was less than two hours. Slam dunk for the DA bringing the case.

    And there is more, much more to research in terms of other grounds for the complaint. Read up.