******************** THIS BLOG HAS MOVED TO WWW.LEGALINSURRECTION.COM ********************

This blog is moving to www.legalinsurrection.com. If you have not been automatically redirected please click on the link.

NEW COMMENTS will NOT be put through and will NOT be transferred to the new website.

Thursday, March 24, 2011

Wisconsin Court of Appeals Refuses To Rule On TRO, Says Case Should Go Directly To WI Sup. Ct.

Channel 3000.com in Wisconsin is reporting that the Wisconsin Court of Appeals has declined to rule on the TRO enjoining the Secretary of State from publishing the budget repair bill:

The Wisconsin Court of Appeals declined on Thursday to rule on a Dane County judge's order stopping the publication of a controversial union law passed by the Legislature earlier this month. The case will now be decided by the state Supreme Court.

The court said the Supreme Court should decide whether a law that takes away nearly all collective bargaining rights from most public workers should be allowed to take effect.

A majority of the seven-member Supreme Court must agree to take it or it would remain in the appeals court.

The 4th District Court of Appeals said Thursday it is appropriate for the state's highest court to take the case because it presents significant issues that are likely to end up before the Supreme Court anyhow.

A Dane County judge issued an order last week preventing Secretary of State Doug La Follette from publishing the law, saying Republicans violated the state open meetings law when passing it.
According to the Wisconsin State Journal, the Court sent two questions to the Supreme Court:
The court sent two questions to the Supreme Court: Can a circuit court judge strike down a legislative act as a remedy for violation of the state's open meetings law, and if so, does the court have the authority to stop the secretary of state from publishing the bill before it becomes a law?
I addressed this issue yesterday:
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.
While waiting for someone (the court, a newspaper, etc.) actually to post the opinion, it is worth noting that this raises the tactical issue, once again, of whether the legislature simply should re-notice and re-vote, something I suggested right after Judge Sumi issued the TRO.  Some have suggested that the Republicans don't have the votes in the Senate anymore, and that's why they're going the court route.  Who knows.

Analysis to follow when Court of Appeals decision is available.

Updates:  The Court has posted the decision, in the form of a Certification to the Supreme Court.

The Court found that the Supreme Court case law required clarification on the two issues below, and therefore felt that only the Supreme Court could do so:
"We certify the following questions: (1) whether striking down a legislative act—also known as voiding—is an available remedy for a violation of the Open Meetings Law by the legislature or a subunit thereof; and, if so, (2) whether a court has the authority to enjoin the secretary of state’s publication of an act before it becomes law. [3]"
The footnote 3 referenced, states as follows:
"[Secretary of State] La Follette also contends that the circuit court erred in issuing the TRO because: (1) the secretary of state is immune from suit; (2) there was no violation of the Open Meetings Law here because the government bodies at issue followed conflicting legislative rules for notice, that took precedence over Open Meetings Law provisions; (3) even if there was a violation, the remedy would be limited to voiding the actions of the legislative committee and senate who committed the alleged violations, and could not reach subsequent actions by the assembly, governor or secretary of state; and (4) the circuit court failed to properly consider the irreparable harm to the State which La Follette claims will be caused by the TRO.  We do not believe that any of those questions, standing alone, would warrant granting leave to appeal, although, of course, the Wisconsin Supreme Court would have full authority to address any or all of them."
The Court sent both the general appeal and the emergency application to lift the TRO to the Supreme Court.

I'm not familiar enough with Wisconsin procedure to know what this means for the hearings scheduled next week before Judge Sumi, and whether such hearings can proceed while an appeal is pending.  But if this indicates a long appellate process, during which the Secretary of State cannot publish the law or the State cannot implement the law, it seems that the Governor and legislature need to rethink the strategy, and re-vote if they still have the votes.

Reading through the relatively short decision, it is clear that this was a total punt by the Court of Appeals.  Considering that the State will be harmed by the delay in publication, which interferes with the legislative process, the Court could have ruled on the TRO portion bases on the same likelihood of success standard employed by Judge Sumi. 

Follow me on Twitter, Facebook, and YouTube
Visit the Legal Insurrection Shop on CafePress!
Bookmark and Share


  1. I stand corrected. I never thought the court of appeals would neglect their duty.

    I hope Gov Walker does an immediate do-over and gets this out of the courts.

  2. The way I read the quote from the journal, the Court of Appeals has raised the underlying substantive issue: Can a violation of the state's open meeting law invalidate a legislative act?
    This seems to go beyond the procedural issue of whether the court can enjoin the publishing of the statute.

  3. @Rick, yes, that description makes it appear that there also is a substantive issue, although not the underlying issue of whether there even was an Open Meetings Law violation in light of the exemption for legislative rules.

  4. i'd say this is the Appeals Court punting a political football, proving that the union terror campaign has been successful.

  5. It seems that the Wisconsin Supreme Court could eliminate this challenge to the statute by choosing to reach the substantive issue and deciding that a violation of the open meeting law cannot invalidate the legislative act. That could all happen fairly quickly.
    On the other hand, if the Supreme Court takes up that issue and holds that a violation of the open meeting law can invalidate a legislative act, it could require evidence to be developed on that issue, which could drag this issue out awhile. That, in turn, could raise the issue of the availability of injunctive relief in that situation. Much could depend on how many issues, if any, the Supreme Court chooses to address at this time.

  6. Goodman v. Zimmermann is useful but not quite on point, is it? As I read it, that case dealt with constitutionality of a different process, and the Open Meetings Law came decades later and is grounded in the state constitution. The filings on this case also provide others since that are intriguing, if indicating the need to resolve this issue with more clarity. (But from my experience with the OML for decades, as soon as clarity seems achieved, some odd new case emerges -- if usually at the agency or local level so not receiving the attention of this case.) The filings also do discuss that the legislature's Joint Conference Committee rules do not discuss -- i.e., exempt such joint bodies from -- the Open Meetings Law, as do Senate and Assembly rules. That is, there is no one set of "legislative rules," but there are separate rules agreed by each body and then agreed re joint bodies, although the high court in its wisdom certainly may construe intent despite a sin of omission.

    The case is being docketed today, so it will be interesting to see if it comes up in the high court before the legislature reconvenes in 10 days, when it could just reverse again and pass the law again. It will be law either way, and it is retroactive to this weekend whenever it becomes law, so nothing is lost in terms of the budget-fixing bill, or at least the portions of it passed. The legislature will return to pass the rest, anyway, so may as well just revert to the original bill to fix the budget, while the courts fix the interpretations and implementations of the Open Meetings Law.

  7. redc1c4, as I understand it, when presented with a case that clearly will go to the state high court, anyway, as this one was expected by one and all to do, and in a case with considerable urgency (not so much about the budget fix, as that goes forward, anyway, but with meetings held daily across the state) -- the Appeals Court itself is expected to send such a case forward to the high court. Otherwise, this could become even more protracted, in the event of a further appeal of an Appeals Court decision -- and one high court justices has a campaign ramping up by the day so may be happy to get this done fast, in days.

  8. Greta Van Sustern quizzed the Wisconsin senate majority leader earlier this week about why they don't provide proper notice and re-vote. He didn't give a satisfactory answer, only saying that he was confident the budget repair bill will survive judicial review. Then Greta pointed out how much taxpayer money could be saved by re-voting, rather than hiring outside counsel to usher the case through the courts, and he didn't have a good response to that either. After watching that interview, I concluded the non-stop union/public pressure on the Republicans has caused some of them to soften their support for the bill to such an extent that the leadership is worried it may not pass if it was re-voted on.

    The other thing to keep in mind is that Ann Althouse has been blogging about the upcoming election of a Supreme Court judge on April 5th. I haven't followed that story as closely, but I think I have it right that if the challenger wins the election, it will shift the makeup of the court from a conservative majority to a liberal majority.

    Of course, justice is blind so the outcome of the litigation could not be impacted by who wins a political election.

  9. A few things: What is the harm to the state in the delay? I don't see it and am interested. When the law goes into effect -- either allowed to do so by the high court or passed again by the legislature -- the hits to take-home pay of state employees are retroactive to this weekend, and thus the state budget will be "repaired." As for legal costs, the AG and DA are already hired to do these jobs, anyway.

    As for the upcoming election, doubtful that a shift from Prosser (incumbent, conservative) could have impact on this case unless the high court takes eons on it. There is the matter of swearing in officials, which Wisconsin does not do for some time; do other states swear in officials the day after elections? Interesting.

    Now, to the matter of the case at hand, the Milwaukee Journal Sentinel's story offers some illumination as to several relevant cases, split down the middle for both sides, and not just Goodman v. Zimmermann oft-cited here (perhaps because it's the one that the AG cited, but the DA's filings raised several other interesting cases perhaps as much or more on point -- that's for the high court to call) in deciding whether or not Judge Sumi erred:

    "The case pits two state constitutional provisions against each other. One provision specifies the separate powers of the legislative, executive and judicial branches. The other provision requires that the doors to the Legislature remain open when lawmakers are in session.

    "'It appears to us that the central question presented by the petition and request for temporary relief is whether the open meetings law's express reliance on and reference to (the state constitution) means that the statute should be interpreted as protecting a constitutional interest, thus subjecting alleged violations by the Legislature or subunits thereof to judicial review,' the appeals court opinion said.

    "There are two significant issues for the court to address, the decision said. First, the Supreme Court must rule on whether courts can void a law if a committee of the Legislature violates the open meetings law. Second, the high court needs to say whether courts can prevent the secretary of state from publishing a law, thus preventing it from taking effect.

    "The appeals court cited four earlier Supreme Court decisions - two that favor Ozanne and two that favor Secretary of State Doug La Follette and the Department of Justice.

    "In 1943, Supreme Court ruled the judiciary could not block a law before it was published. But 30 years later, the Legislature voted to explicitly subject itself to the open meetings law. And around the same time, in 1976, the Supreme Court found the open meetings law applies to the Legislature.

    "sIn 1983, the high court ruled the Legislature could violate its own procedures and that doing so amounted to simply repealing its rules. That case did not deal directly with the open meetings law, however.

    "Then, in 2009, the Supreme Court determined it could review the Legislature's procedures in an open records case."

    (more at jsonline.com)

  10. Here's how this plays to the SCOWI election of 4/5:

    Abrahamson, CJ of SCOWI, is a cunning political animal. She will make certain that SCOWI issues its opinion (which will FAVOR Walker) before the 4/5 election. Justice Prosser will vote to quash the TRO, and his opponent will immediately run ads about how "Prosser Screws Working Class."

    At the same time, the Court of Appeals does have a sensible reason for tossing this to SCOWI: no matter how they rule, it will be appealed. This IS a time-sensitive case.

  11. Greta: http://gretawire.blogs.foxnews.com/wis-lt-gov-rebecca-kleefisch-on-the-record-3/

    Althouse: http://althouse.blogspot.com/2011/03/wisconsin-supreme-court-candidate.html

  12. I do not think that Sumi has jurisdiction of the case now that both issues have been punted upstairs.

    In a similar case years ago involving SCOTUS and a claimed right to intervene in an ongoing federal case,it is my recollection that the trial court no longer had jurisdiction once the SCOTUS granted our petition for a writ and that got us moved to the fast track calendar because the case was hanging fire. Of course, I'm old and my recolletion may be so so.

  13. If it turns out that the votes are now inadequate to win on a re-vote, the spineless weasels who changed their votes should be recalled. Governor Walker should make it very clear that anyone wimping out can kiss of getting any help from the GOP in the next election and will be contested by another Republican candidate.

  14. A Wisconsin blog I read, No Runny Eggs, thinks this is a stall tactic by the Court of Appeals to give local governments (read: Democrats) more time to lock in deals with their union allies under the old law and maybe putting Supreme Court Justice Prosser, a conservative up for reelection against a pro-union candidate, under some pressure: http://is.gd/O9hAvt

  15. Preparations are surely being made to impeach Judge Sumi. Oh wait, we're talking about action by the Stupid Party's legislators so forget about it.