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Tuesday, June 14, 2011

Wisconsin Supreme Court Overturns Judge Sumi

The Wisconsin Supreme Court has just released a decision (here) overturning Judge Sumi's ruling invalidating the Wisconsin collective bargaining bill.

Some key language from the ruling, which overturned Judge Sumi's rulings both procedurally (for interfering in the legislative process) and substantively (there was no violation of the Open Meetings Law)(emphasis mine):
¶6 IT IS FURTHER ORDERED that all orders and judgments of the Dane County Circuit Court in Case No. 2011CV1244 are vacated and declared to be void ab initio. State ex rel. Nader v. Circuit Court for Dane Cnty., No. 2004AP2559-W, unpublished order (Wis. S. Ct. Sept. 30, 2004) (wherein this court vacated the prior orders of the circuit court in the same case).

¶7 This court has granted the petition for an original action because one of the courts that we are charged with supervising has usurped the legislative power which the Wisconsin Constitution grants exclusively to the legislature....
¶9 Although all orders that preceded the circuit court’s judgment in Case No. 2011CV1244 may be characterized as moot in some respects, the court addresses whether a court can enjoin publication of a bill. The court does so because whether a court can enjoin a bill is a matter of great public importance and also because it appears necessary to confirm that Goodland remains the law that all courts must follow. State v. Cramer, 98 Wis. 2d 416, 420, 296 N.W.2d 921 (1980) (noting that we consider questions that have become moot “where the question is one of great public importance . . . or of public interest,” or “where the problem is likely to recur and is of sufficient importance to warrant a holding which will guide trial courts in similar circumstances”). Accordingly, because the circuit court did not follow the court’s directive in Goodland, it exceeded its jurisdiction, invaded the legislature’s constitutional powers under Article IV, Section 1 and Section 17 of the Wisconsin Constitution, and erred in enjoining the publication and further implementation of the Act.

¶10 Article IV, Section 17 of the Wisconsin Constitution vests the legislature with the constitutional power to “provide by law” for publication. The legislature has set the requirements for publication. However, the Secretary of State has not yet fulfilled his statutory duty to publish a notice of publication of the Act in the official state newspaper, pursuant to Wis. Stat. § 14.38(10)(c). Due to the vacation of the circuit court’s orders, there remain no impediments to the Secretary of State fulfilling his obligations under § 14.38(10)(c).

¶11 IT IS FURTHER ORDERED that we have concluded that in enacting the Act, the legislature did not employ a process that violated Article IV, Section 10 of the Wisconsin Constitution, which provides in relevant part: “The doors of each house shall be kept open except when the public welfare shall require secrecy.” The doors of the senate and assembly were kept open to the press and members of the public during the enactment of the Act. The doors of the senate parlor, where the joint committee on conference met, were open to the press and members of the public. WisconsinEye broadcast the proceedings live. Access was not denied.[1] There is no constitutional requirement that the legislature provide access to as many members of the public as wish to attend meetings of the legislature or meetings of legislative committees.
The Court adopted the argument I had made here many times, that the Courts had no business questioning the legislature's interpretation of its own rules:
13  It also is argued that the Act is invalid because the legislature did not follow certain notice provisions of the Open Meetings Law for the March 9, 2011 meeting of the joint committee on conference.  It is argued that Wis. Stat. § 19.84(3) required 24 hours notice of that meeting and such notice was not given.  It is undisputed that the legislature posted notices of the March 9, 2011 meeting of the joint committee on conference on three bulletin boards, approximately 1 hour and 50 minutes before the start of the meeting.  In the posting of notice that was done, the legislature relied on its interpretation of its own rules of proceeding.  The court declines to review the validity of the procedure used to give notice of the joint committee on conference.... 
This is a sweeping victory for Republicans and Gov. Scott Walker.  (And for my prior legal anaylsis, but that's another matter.  I'll be spiking the football, for sure.)

This also is a vindication for the legal strategy of not backing down to the unjust, unwise, uncalled-for, unlawful rulings of Judge Sumi, who engaged in clearly unsound legal reasoning which -- whether intended or not -- took on the appearance of political posturing.

Okay, analysis done, now I spike the football by referencing my prior posts:
  • Judge Sumi's Mess ("Judge Maryann Sumi preemptively issued a Temporary Restraining Order (TRO) which she thought ... 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.")
  • Judge Sumi Throws Out Wisconsin Collective Bargaining Law ("It is one thing for a court to rule on the validity of a law, but quite another thing for a court to stop the legislature from making law. Judge Sumi gives short shrift (at pp. 13-14) to the key Wisconsin case which says courts must await a law coming into effect before ruling on the law, Goodland v. Zimmerman. Judge Sumi summarily dismisses the import of Goodland by stating that it was a pre-Open Meetings law ruling. Well, chronologically yes, but the principle is the same; courts rule on legislation, courts do not stop legislation from being made.")

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  1. Bravo on your great analysis and interpretation of the law --- which is why I'm a daily reader. Good news indeed for Walker and WI. We don't need activist judges legislating from the bench.

    I think Sumi just got judge-slapped in the kisser.

  2. But how does this help Michelle's children?

  3. "I'll be spiking the football, for sure."

    Oh sure. Not "s-o-o-o-o-o-o tired" anymore are we!

  4. @freedom-fighter. Yeah she did! Pow. Take that Usurper!

  5. Wisconsin certainly seems to have goodly supply of female judicial cranks.

  6. Now what do Feingold, et al do next? Let the thuggery ensue.

  7. Now to impeach Sumi.

    But I really don't understand why Walker has played along with this charade for the past two months. If I were in his place I would have written Sumi a letter when she first intervened, telling her that she was ultra vires, and therefore that I would not dignify her purported hearings with my presence or that of my representative, and that I would ignore all decisions or orders she might issue as a result, and that she was cordially invited to fold all such decisions and orders and shove them into whichever part of her anatomy she thought they might do the most good for.

  8. Two of the four Justices in the majority were women. Just sayin'

  9. The AP says its was 4-3, it is the only thing I have seen it being 4-3, even JSOnline did not say. Seems like there would of been a few rulings, not just one. I am sure if it was 4-3, some of the 3 would of agreed with some of the other parts of the ruling.

    Wisconsin Supreme Court lets polarizing union law pushed by Republican governor take effect

    Associated Press
    US Video
    Buy AP Photo Reprints
    Latest Budget News
    Federal budget deficit on pace to break $1 trillion for third straight year

    Obama's 2011 budget
    Following the Madison protest

    MADISON, Wis. (AP) -- The Wisconsin Supreme Court handed Republican Gov. Scott Walker a major victory on Tuesday, ruling that his polarizing union rights law can go into effect.

    In a 4-3 decision, the court said Dane County Circuit Judge Maryann Sumi overstepped her authority when she said Republican lawmakers violated the state's opening meetings statutes in the run-up to passage and declared the union rights law void.

  10. "The court declines to review the validity of the procedure used to give notice of the joint committee on conference"

    What kind of justification is that? So the legislature can disregard its own rules? Even if that meeting was justified under the "good cause" provision, that notice was given less than the explicitly written minimum of 2 hours.

    Like the dissenters state, the enforcement of laws against the legislature is a big constitutional question, but instead of addressing the issue, the Court goes "La La La" and puts their fingers in their ears.

  11. They invoked the Flaming Honey at Ace of Spades over this.

    You deserve a lot of credit for getting this right.

  12. "So the legislature can disregard its own rules?"

    Um, yes, of course it can. They're its rules, after all, so why shouldn't it ignore them if it chooses? How is this a surprise to you? Congress ignores its own rules all the time. How is this the business of any court? Does Congress interfere if a court ignores its self-imposed rules?

  13. In any event, who cares whether the committee meeting was valid? Even if it were completely invalid, what has that got to do with the law that was passed by the legislature, not by the committee?

    instead of addressing the issue, the Court goes "La La La" and puts their fingers in their ears.

    Which is all it has any right to do. Have you never heard of the political question doctrine?

  14. Spike the football, take a victory lap. You were spot on concerning this hack judge Sumi.

  15. So the legislature can disregard its own rules?

    Yes. And if the Legislature really wanted to, it could've run a motion to change the rule to make it a five-minute warning, gotten a majority to vote yes and then imposed the five-minute warning.

    Judge Sumi had absolutely no authority to rule in the way she did. None. No judge does. Not when it comes to legislative rules. Rules are not laws.

    Back when I worked in the Legislature, we had a rule that the budget bill could only be voted on twice. Due to some shenanigans, the second vote failed. So, what did we do? We changed the rule and made it so the budget could be voted on three times. And so it was.

    The minority party screamed. Didn't matter. Budget passed on the third try. The. End.

    The bottom line, if there's a majority of votes for anything regarding the rules a Legislature sets, they can change those rules with that majority.

    You know, it'd really help if the liberals screaming about the things going on actually understood, you know, the things that are going on.

    Believe it or not, some things go deeper than what you read on your liberal blogs.

  16. @N:

    The Legislature passes laws, and any one law can change a prior law. No prior law has any dominance over a former law, you need a Constitutional amendment in order to have that dominance.

    The WI SC just re-established that, and that the Courts have no business telling the legislature how they are supposed to legislate (notably, the lower Court ignored the opinions of the people tasked with interpreting these rules, too, in a nakedly political decision). The WI SC re-affirmed that the role of the Courts in these cases is ONLY to see if a law, that is in effect, runs afoul of the WI Constitution.

    The dissent relies on the notion that some laws, because they cite the WI Constitution, can be somehow more powerful than other laws, and have the stature of Constitutional Amendments (so tha the Courts can second guess a legislature's implementation of its own, internal rules).

  17. Shirley Abrahmson's dissent is absolutely laughable, whining about giving the case "short shrift", then whining that Prosser's concurrence is too long.

    She states Page 34 Paragraph 87: The District Attorney's challenge to the Budget Repair
    Bill asserts that the Open Meetings Law is a codification of the
    mandates expressly provided for in the Wisconsin Constitution.

    She whines that the majority is making up fact findings unsupported by the transcripts et al. And she cites an example:

    She states Page 42 Paragraph 110: "Justice Prosser suggests that the argument of the
    parties is that the Open Meetings Law is a codification of
    Article IV, Section 10 of the Wisconsin Constitution ..."

    On Page 40 Paragraph 102 she states:
    "The order states: "The doors of the senate and
    assembly were kept open to the press and members of the public
    during the enactment of the Act. The doors of the senate
    parlor, where the joint committee on conference met, were open
    to the press and members of the public. WisconsinEye broadcast
    the proceedings live.10 Access was not denied.""
    Emphasis mine.

    She then goes on to opine in her footnote (Where opinions don't belong!) on the very same page: "Press coverage is not necessarily the equivalent of
    allowing the public to be present."

    Yeah, they kinda already made the distinction... Genius...

  18. All the justices agreed with the outcome. The three dissents were regarding whether they should have spent more time on it, and whether the lower court had a basis for intervening. None of them said that the lower court ruling should stand -- both dissents admitted that the judgment was correct before saying "...however..."

  19. Crooks' dissent beginning page 49, in contrast to Abrahmson's effete partisan sniping, is actually fairly well reasoned, though he omits any mention of Senate Rule 93...

  20. I can respect the viewpoints of those here, but...what a smug bunch of snots! The nastiness on display here is really appalling.

  21. This is what democracy looks like!

  22. For my money, when you're ready to spike the football, This is the section you need to quote:

    ¶57 Subsection (2) provides: "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." Wis. Stat. § 19.87(2).
    The circuit court second-guessed not only four legislative leaders but also the Senate Chief Clerk——an attorney——when it determined that no senate or assembly rule, including Senate Rule 93 (on which the Senate Chief Clerk relied), governed the notice requirements of the special session conference committee.
    The circuit court, in effect, told the Senate Chief Clerk that he did not know what the Senate rule meant.

  23. N. said...
    "What kind of justification is that? So the legislature can disregard its own rules? Even if that meeting was justified under the "good cause" provision, that notice was given less than the explicitly written minimum of 2 hours."

    Of course it can, aside from the fact the argument was specious from the get-go as others have pointed out, No court has the authority to tell a legislative body that they can not determine their own rules or how they must interpret those rules. That is the sole realm of the legislature and if Judge Sumi, or any other judge, wishes to legislate, they should resign their position on the court and run for public office.

    In this case though, any argument put forth that an hour and 50 minutes notice did not fall within the legislature rules is already discussed in WI Open Notice rules. The WISC ruled correctly.

    (6) Notwithstanding the requirements of s. 19.83 and the requirements of this section, a governmental body which is a formally constituted subunit of a parent governmental body may conduct a meeting without public notice as required by this section during a lawful meeting of the parent governmental body, during a recess in such meeting or immediately after such meeting for the purpose of discussing or acting upon a matter which was the subject of that meeting of the parent governmental body. The presiding officer of the parent governmental body shall publicly announce the time, place and subject matter of the meeting of the subunit in advance at the meeting of the parent body.

    Since the meeting in question was to discuss legislation that would go in front of the entire body (parent) and did not require every legislature to attend (subunit) can hold a meeting without providing notice to the public. Notice was given to the public as a courtesy, not because it was required.

  24. Congratulations, Bill, for your insightful legal analysis, and congrats to the (reasonable) citizens of Wisconsin. I appreciate your keeping us informed on this issue. cheers chuck

  25. Yer a real smart cookie, Captain--you're really sticking it to Sumi good...I'm sure she and all da rest o' dem librals have been put soundly in their places by your legal brilliance.

  26. I for one embrace my smug snottiness....there are so very few things in the political/legal arena as enjoyable as seeing an overreaching, imperialist judge get slapped down so hard that it loosens some teeth. Judges of this ilk believe they are a law unto themselves, and that a black robe makes them little kings who can ignore, disregard, and rewrite the law at their every whim. They are bad for the rule of law, they are bad for representative forms of government, and they are bad for America. While rubbing someone's nose in something is an act I generally disdain, such judges deserve every ounce of disrespect and ridicule the public hurls their way. More, really. Governed by ego and god complexes as this sort are, the fear of embarrassment and public humiliation is the only thing that keeps lawless judges in check.

  27. @simplyscrummy

    Pot. Meet. Kettle.

  28. "Yer a real smart cookie, Captain--you're really sticking it to Sumi good"

    At least some of us can tell the difference between the words "Sumi" and "Abrahmson".

    Maybe if you guys tried reading comprehension for a change, we wouldn't be in this situation in the first place.

  29. You're right, Don't Tread--as your witty rejoinder suggests, I'm a hypocrite, even though the tone of my one comment hardly matches that of Captain's many comments, or those of others here. At least I do care about manners, which he and others here don't. But such subtleties are probably lost on you.

  30. Sorry, I re-read the comments and I just don't see the snottiness. This is a very informative thread and I thank all of you lawyers for chipping in to explain it to us non-lawyers.

  31. The snottiness is implicit in the mere fact Scrummy disagrees with the views most have expressed.

    As for Cowboy, he's welcome to his smug snottiness -- I'll adhere to my snotty smugness, which is far superior, and much more worthy of pride.

  32. I'm sorry. I looked and looked and looked for any "subtleties" in scummie's posts and there just aren't any. Perhaps the voices in his/her head told him/her so, but that doesn't make it true.
    [And obdurate, deliberate ignorance doesn't qualify as being subtle.]

  33. As a non-lawyer, I find the drafting of this decision very annoying. Why is the field that should list concurring and dissenting justices left blank?

    Much of the language in it is trite to the point of being Kindergarten, and yet I can't determine what the three justices concur with or dissent from. Is this a 4-3 decision, or a 7-0, or what the hell is it? They surely can't be dissenting just because the decision was so quick. That would make their own concurrence (with whatever they are concurring with) more foolish than that of the majority.

  34. I think someone is trying to make me cry.

  35. BS, McGehee. But you did reinforce my original point, so thanks. I didn't say anything about whether agreeing or disagreeing with anyone's views, though I did say I respected them. Which seems to be more than can be expected of commenters here.

  36. Make one mistake and a person completely lacks reading comprehension skills, I guess, CO. I actually came here hoping to understand the case and the decision better--trying to understand opposing viewpoints, objectivity and all that. It would appear it doesn't pay to try to do things like that.

  37. "void ab initio"

    That's gonna leave a mark.

  38. Money in the bank: when Democratic lawmakers break their own legislative rules for passing laws, Republicans will cry to the ever-attentive corporate-owned media that Democrats aren't following "the rule of law."

    The definition for "rule" in the dictionary should read, "Something to be, in turns, ignored or deified by conservatives, depending upon whatever political situation they find themselves." See Bush v Gore for evidence of that definition's accuracy.

    The Wisconsin court's ruling - along with this blog and all of its moronic readers - is simply more proof that the selfishness and hypocrisy of conservatives know no limits.

  39. ah, murray, don't call yourself a moron... it is painfully already obvious to the rest of us... give yourself a break, dear and go back to Huffpo and koolaid drinking

    cheerio mate


    sit down and stfu Sumi (too snotty or not enougth?)...

  40. @Murray Rizberg: "the ever-attentive corporate-owned media" ???? hahaha WOW! You are either drinking the Koolaide by the pitcher, or have the observation skills of a worm... The media is so left leaning it's fallen over. MOST liberals I know even acknowledge this fact. Do your homework on George Soros for starters. You really want to learn something and not just be a Koolaide drinker, then I challange you to watch FOX and other sources for a month. Listen to Glenn Beck and learn things you'll NEVER hear on MSLSD and it's ilk.

  41. More importantly, how can anyone go about getting rid of these activist judges? VERY important in my opinion!!!

  42. Hey, Murray:


  43. I don't understand what the debate is about, here. As mentioned in a previous post, the legislature makes it's own rules, based on majority opinion. A judge stepping in and overriding an action taken by the legislature is like asking for laws to be made that affect judge's decisions in the courtroom. Perhaps a new state law that invalidates a judge's decision on a particular topic. Direct intervention in the courtroom. I haven't even mentioned the fact that the son of the woman is a lobbyist with a direct interest in the outcome of her ruling. The whole thing stinks to me, and Sumi deserves everything that came to her. She clearly exceeded the separation of powers, people. Personally, I think she received financial compensation for that ruling.

  44. Sorry if this was already mentioned - but had Kloppenburg beat Prosser, the ruling would have gone 4-3 against the law rather than 4-3 for it. Something to keep in mind, and this not only is huge for Walker and WI elected Republicans, but state legislatures and Republicans all across the country fighting union collective bargaining, overreach and theft of private property. And this is a HUGE loss for the Democrat Money Laundering operation!

  45. Peg C. - The justices voted 7-0 to overturn Sumi's decision, so the recent election made no difference. The 3 dissenters only point was that the Wis. SCOTUS should have taken more time or not gone as far. The issue there is perhaps more detailed than one can address in the comment section of a blog, but the upshot is that the court's decision yesterday (perhaps ironically?) establishes that Wisconsin's Open Meetings law is unconstitutional, which obviously can have far-reaching implications that go well beyond our current budget repair act.

  46. Does this mean the open meetings law is now invalid, or moot? Isnt the open meetings law part of the WI constitution and not a rule of the legislature? If the legislature can ignore a law, at will, without repercussions, why did they even cooperate with the Judges ruling at all?

  47. Does this mean the open meetings law is now invalid, or moot?

    Of course not. Why would you even think that?

    Isnt the open meetings law part of the WI constitution

    What a moronic idea! What part of "law" do you not understand?

    and not a rule of the legislature?

    No, it's not that either. Again, what part of "law" do you not understand?

    If the legislature can ignore a law, at will, without repercussions,

    They probably can, but in this case they didn't.

    why did they even cooperate with the Judges ruling at all?

    The legislature didn't. The governor did, and he probably did so out of an exaggerated and misplaced respect for the judiciary; if I were Walker I would have told Sumi to shove her ultra vires orders where the sun don't shine, and wouldn't even have bothered to be represented at her purported hearings.

  48. simplyscrummy says:

    "I can respect the viewpoints of those here, but...what a smug bunch of snots!"

    Also, simplyscrummy says:

    "At least I do care about manners..."


    What an...interesting...definition of "manners." I didn't realize that Emily Post endorsed butting one's way into a conversation by insulting one's fellow guests. Perhaps Judith Martin will comment on this at some point, and then we can get a definitive answer.

    Oh, and before I forget:

    "I actually came here hoping to understand the case and the decision better--trying to understand opposing viewpoints, objectivity and all that. It would appear it doesn't pay to try to do things like that."

    Either you're the least self-aware person I've met in many moons, or the consummate troll. I'm going to assume for your sake that it's the former, and stake you to some very valuable advice. When trying to understand opposing viewpoints, it is probably NOT best to make one's opening conversational gambit an insult. People who do that generally tend to come across as, to coin a phrase, a "smug bunch of snots."

    WV: bilad -- My way of of keeping my temper in check by bidding a not-so-fond auf wiedersehn to many left-wingers on the Internet.