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Saturday, March 26, 2011

Judge Sumi's Mess

The legal situation in Wisconsin is a mess. 

Judge Maryann Sumi preemptively issued a Temporary Restraining Order (TRO) which she thought (see below) would stop the publication of the budget repair bill, and therefore prevent the bill from becoming law.  This was an unprecedented move, and none of the legal arguments which attacked the validity of the law necessitated such interference in the legislative process.  A TRO issued soon after the law took effect would have been every bit as effective, but would not have created the legal limbo in which Wisconsin now finds itself.

The Court of Appeals compounded Judge Sumi's actions by refusing to address those actions, punting the case up to the Supreme Court, without addressing the injunctive aspect of Judge Sumi's order.  The Court of Appeals could have addressed the injunctive aspect of the TRO as related to interfering in the legislative process, while still referring the merits as to the validity of the law to the Supreme Court.

By issuing a TRO, Judge Sumi upset the status quo, which is the opposite of the purpose of a TRO.  The status quo was for the state to follow its normal schedule in publishing legislation, but that could not happen, or so thought Judge Sumi and the Dane County District Attorney who brought the lawsuit.

But yesterday the nonpartisan Legislative Reference Bureau published the law anyway (see my prior post for details), on the ground that it was not covered by the TRO which was against the Secretary of State only, and that it was required to do so. 

We now have another level of dispute, which is whether the publication by the LRB was sufficient publication for the law to take effect the following day (today).

We have multiple levels of uncertainty and legal limbo as to the status of the law, and it all reverts back to Judge Sumi's overreach by interfering in the legislative process rather than allowing the law to take effect and then ruling on whether the law could be implemented by various state entities and individuals.

The pro-union forces certainly love this legal limbo.  Is the law law, or not? Who knows, everyone seems to have an opinion.  The longer the limbo continues, the better for those who oppose the law.

The role of courts is to remove legal limbo, to resolve issues in a way which provides clarity to the parties, and in this case, to the people of Wisconsin.  Instead, the present legal mess was created in substantial part by the Wisconsin courts.

Update:  Last night the District Attorney attempted to obtain a second injunction from another Judge (because Judge Sumi is away until Tuesday), but was denied relief:
A state judge declined to take emergency action on the matter. In an order issued late Friday, Dane County Circuit Judge Sarah O'Brien said she didn't know what legal significance there was to the publication of the law on the Legislature's website. Ordering it removed, as she said the district attorney wanted her to require, would mean nothing, the judge said.

O'Brien said no harm would be done in waiting until Tuesday when another judge had a previously scheduled hearing on a lawsuit challenging the law that was brought by Democratic Dane County District Attorney Ismael Ozanne. Last week, the judge hearing that case issued a temporary restraining order blocking the law's implementation.
And Marquette Law Professer Rick Esenberg discusses the dispute over publication of the bill here.

Related Posts:
Wisconsin Publishes Budget Repair Bill Despite TRO
Wisconsin Court of Appeals Refuses To Rule On TRO, Says Case Should Go Directly To WI Sup. Ct.
If Need Be, Re-Pass The Law And Include The Police Unions

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  1. This chaotic situation fits into the left's general plan of overwhelming our society's institutions in the hope of creating a collapse.

  2. Where does the Governor stand on implementing this law?

    Inquiring minds want to know.

  3. And the inevitable result of a highly-politicized judiciary. Conservatives and the GOP need to understand that they are in a war to the knife with progressives. It is often said that conservatives believe progressives are wrong while progressives believe conservatives are evil. It is long past time to recognize the evil of the left. The Left has brought us economic depression, millions of dead, communism, fascism, and nazis. Isn't it time to call evil by it's name?

  4. Related to Chuck's point above, and what Chuck wrote yesterday: What are the Republicans doing in Wisconsin to prevail in the upcoming, non-partisan, supreme court elections, and in the recalls? People around the country may be willing to contribute to those causes, but it is tough to do so without having some understanding of the Republican game plan.

  5. I wish Gov. Walker would stop acting like a pinata during these attacks on him. Why not organize against the Demonrat campaign to unseat a Supreme Court Justice favorable to Walker's plans? I'm not hysterical like Ann Coulter about this, but sure wonder about any signs of life in the GOP Party. Has the GOP National Chairman from WI gotten involved? Is there ANY way for out-of-staters like myself, a native Wisconsinite, to get involved?

  6. "stop acting like a pinata"
    Good advice in general for Repubs.
    But didn't Walker get re-elected multiple times from a Dem area? Perhaps he knows what he is doing. I hope so!

  7. It is long past time to recognize the evil of the left.

    Yes! I've been one of those chalking up leftism to ignorance and emotion for years, but you're right. It is evil.


    Throw all the states institutions out and start over.
    (Jefferson wrote something about this, you know.)

  9. JimMtnViewCa: Walker never has lived in or elected from the city of Milwaukee. He got elected initially to the legislature from his suburb of his city. His next and previous post was as executive of Milwaukee County, which has far more votes from (Republican) suburbs than from the (Democratic) city. He never won a majority in the city, and his record as county exec most recently lost him the suburbs, too; in the gubernatorial election, even when so many Democrats stayed home, Walker lost Milwaukee County by a margin of two to one.

  10. ---He never won a majority in the city, and his record as county exec .... ----

    Ohh.... he never won in a city that is going the way of Detroit. Residency rules anyone?

    The point is actually the opposite. As county Exec Walker had to deal with the same Union contracts, the same bosses, the same thugish unconcern for a budget that was shredded by outlandish pensions.

    He made headway against all these and was re-elected 3 times. Don't know why you think all the Democrats stayed home, they came out fairly strong for milk-toast Barrett.

    The larger point is Walker has had to deal with these tactics before, and has also looked out for the taxpayers. He will make this go his way.

  11. @ Dave in Boca: I am much less concernd about the SCOWI election on April 5th than I was two weeks ago. while the Left is energized, it is with an unsustainable anger and we have seen that here. We on the Right know what is at stake and will be at the polls, expecting to win. By the time the recalls come around, it will be much ado about nothing. Democrats (at least in my district are having trouble getting enough signatures to even qualify for a recall against Alberta Darling.

    We still need to get out the vote, but I do not believe we are in any real trouble.

  12. Deeka -

    That is good news, but is there a good link that covers the status of the GOP-based recalls against the Fleebaggers? Even the WI-GOP page doesn't help much. Does anyone know a blog or the like that is on top of this imperative part of the story?

  13. George, Walker's "headway" against the unions was ruled illegal, y'know, after he left Milwaukee County -- which now has a bill of millions to pay back to workers for Walker's "headway." Not a record to boast about, really; better would be to act legally and actually save the taxpayers such costs . . . although I realize that on a legal blog, some may consider all those taxpayer costs that go to lawyers may not be considered a bad thing.

    Druu222, the recall that is reported as reaching its goal is the one against the appropriately named, all-too-Randy Hopper of Fond du Lac. As for the far more powerful Darling, she apparently sees the recall effort as succeeding because she is readying for the re-election effort, opening two offices in her district, according to reports in local media today. As for other recall drives, recent reports are few -- and even two recall efforts that succeed, if incumbents are re-elected (automatic in the process, unless they resign), would be too few to change the majority in the state Senate.