Wisconsin's Lawless State Government

[Patrick Degan]

Days after a Wisconsin judge blocked implementation of the union-busting law rammed through by Scott Walker's rump GOP legislature, the state attorney general went to court arguing that when the legislature breaks the law, the courts are powerless to do anything about it:

Wisconsin's Lawless State Government
Mary Bottari | Wednesday 23 March 2011

The reign of lawlessness continues in Wisconsin.

Last week, a local court issued a stay temporarily blocking the implementation of Governor Scott Walker's radical proposal to do away with most collective bargaining rights for public workers and cripple labor's ability to collect union dues. The court put a halt to the publication of the bill (an act performed by the Secretary of State), so there could be a hearing on whether or not the Wisconsin Senate violated the state's strong open meetings law in its rush to ram the bill through.

This week, Wisconsin Attorney General JB Van Hollen charged into court in defense of secret government. He argued that when legislators break the law -- the courts can't do anything about it. Apparently legislators, like Senate Majority Leader Scott Fitzgerald, have "immunity" from the enforcement of their very own laws.

Welcome to Fitzwalkerstan, where novel interpretations of long established law are a daily occurrence and the billable hours are stacking up.

Pleadings from Fitzwalkerstan

Wisconsin's open meetings law requires 24 hours' public notice of meetings or two hours in emergencies. The amended collective bargaining bill was given less than two hours. As word spread via Facebook and Twitter that legislators were pulling a fast one, hundreds of citizen's showed up at the Capitol but could not get in to watch proceedings. Shut out, they were forced to chant "shame, shame, shame," under Senate windows.

Yesterday, the Wisconsin Attorney General filed a motion on behalf of the Secretary of State Doug La Follette to void the stay. Bizarrely, his client was never consulted. Indeed, the Secretary of State had delayed publication of the law because of his own concerns regarding the legality of the Senate's unprecedented action.

This is just the latest legal madness from Fitzwalkerstan. To ram the astonishingly unpopular proposal though the Governor and his henchmen had to finagle:

* A five second roll call vote at 1:30 a.m. The move was so abrupt, over 20 legislators never had a chance to vote in the Assembly.

* An unprecedented warrant for the arrest of 14 missing Democratic Senators and the deputization of a posse to round them up.

* A gubernatorial budget address in a locked down Capitol in violation of a standing court order on Capitol access.

* An unprecedented conference committee, formed by fiat, meeting in violation of the open meetings law in a tiny backroom.

* A Senate roll call vote on a substitute amendment no one had ever seen.

* A new Senate rule denying Democrats the right to vote in committee (an insane idea quietly withdrawn.)

* The ongoing violation of the court order to restore Capitol access to as it was in January of 2011.

* These astounding events have many Wisconsinites shaking their heads. "Procedures and open government are important in Wisconsin and I can't remember another time when these procedures have been this disrespected," says UW law professor Bill Whitford, a life-long resident of Madison.

The courts have ruled against Walker twice so far. Thank heavens for the courts! A breath of sanity in an insane world! Or are they?

"Bitches" and "Turds," Oh My!

The reputation of Wisconsin Supreme Court took a pounding this week after the Milwaukee Journal Sentinel released emails showing that bickering on the Court had reached a new low. David Prosser, a sitting justice, acknowledged calling the state's first female Supreme Court Justice "a total bitch" and threatening to "destroy" her. But he nobly defended his actions telling the paper he had been "goaded" into making such statements by the respected Chief Justice.

Prosser is seeking reelection April 5 and is up against a respected Deputy Attorney General JoAnne Kloppenburg. Some months ago, Prosser's campaign released a statement saying that his canidacy would "compliment" the new Governor and the new GOP legislature. Now, Prosser denies having approved the statement. At the first debate between the candidates this week, citizens were expecting a lively debate, but Prosser again went deep into uncharted territory initiating a discussion on the weighty legal matter of "turds." Prosser quoted a comment on his opponents Facebook page: "Stop the turd, vote Kloppenburg." "Now, am I the turd?" Prosser asked. "That's totally inappropriate."

What other terrible rhymes lurk in the random comments of 8,700 Kloppenburg Facebook fans?

What Next?

The case filed by Wisconsin Attorney General Van Holland is in appellate court right now but may end up in the Wisconsin Supreme Court next week where the polarized court may be forced to duke it out to the utter horror of average Wisconsinites who think the state is quickly spiraling out of control. Walkers poll numbers are tanking, showing that he would lose a "do-over" by seven points. But that do-over may not come for a year. In the meantime, Wisconsin will be awash with Senate recalls, big money ads and dirty tricks the likes of which this state, which prides itself on good government and clean politics, has never seen. An indpendent and adult judiciary will be more critical than ever.

The Madison-based Center for Media and Democracy has been reporting the events from the Wisconsin Capitol, focusing on the politicians, corporations and spinmeisters behind the assault on working families. Visit us at PRWatch.org

Funny, but I seem to remember when the GOP argued for limited government. I guess it's taking on a whole new meaning these days.

[Broomstick]

By "limited government" it looks more and more like "limited to the GOP" or, more accurately, "limited to our clique"

[TheHammer]

It will be very interesting to see how the "recall" efforts turn out up there...

And now that the kind of lunacy preached by tea party backed candidates is being seen and felt in a real way both at the local and federal levels, I kind of expect a revitalized Democratic party to be taking a big bite out of the republicans nationwide in the next election.

[JME2]

It will be very interesting to see how the "recall" efforts turn out up there...

And now that the kind of lunacy preached by tea party backed candidates is being seen and felt in a real way both at the local and federal levels, I kind of expect a revitalized Democratic party to be taking a big bite out of the republicans nationwide in the next election.

I can only hope so.

[Eternal_Freedom]

They issued arrest warrants for missing Senators? What the hell?

[TimothyC]

They issued arrest warrants for missing Senators? What the hell?

Contempt of the Legislature. They have a duty, no a responsibility to their constituents to show up and represent the people that they were elected to represent.

Do I think this whole situation could have been handled a lot better - yes, but the State senators need to do their job, and perversely enough this is what the people of Wisconsin on the whole voted for. If they don't like lying in their bed they shouldn't have made it, and yes I take the same position with respect to the crap that is going on here in Ohio.

[Flagg]

They issued arrest warrants for missing Senators? What the hell?

Contempt of the Legislature. They have a duty, no a responsibility to their constituents to show up and represent the people that they were elected to represent.

Do I think this whole situation could have been handled a lot better - yes, but the State senators need to do their job, and perversely enough this is what the people of Wisconsin on the whole voted for. If they don't like lying in their bed they shouldn't have made it, and yes I take the same position with respect to the crap that is going on here in Ohio.

Yeah, except for that whole thing where the people elected didn't campaign on union busting at all.

[SCRawl]

The problem with arrest warrants is that the state constitution expressly forbids senators being arrested. They can be compelled to appear for a vote, but they can't be arrested, save for egregious offences, so long as they remain senators.

ARTICLE IV. LEGISLATIVE:

SECTION 15.

[Exemption from arrest and civil process.] Members of the legislature shall in all cases, except treason, felony and breach of the peace, be privileged from arrest; nor shall they be subject to any civil process, during the session of the legislature, nor for fifteen days next before the commencement and after the termination of each session.

I admit that fleeing the state in order to avoid taking a vote sets a bad precedent (and is a bad idea in general), but the fact is that they simply can't be arrested just because that's what the attorney general wants.

[TheHammer]

They issued arrest warrants for missing Senators? What the hell?

Contempt of the Legislature. They have a duty, no a responsibility to their constituents to show up and represent the people that they were elected to represent.

Do I think this whole situation could have been handled a lot better - yes, but the State senators need to do their job, and perversely enough this is what the people of Wisconsin on the whole voted for. If they don't like lying in their bed they shouldn't have made it, and yes I take the same position with respect to the crap that is going on here in Ohio.

Yeah, except for that whole thing where the people elected didn't campaign on union busting at all.

Hence the precipitous drop in approval for Walker and numerous recall efforts now under way.

I don't blame the Dem senators from fleeing the state given that Walker's idea of "negotiation" was "take it or leave it". Where they fucked up was coming back after they passed the bill to strip bargaining rights. If I were them I'd have been "Ok, so you stripped bargaining rights. You're STILL not fucking passing a budget bill until you put the rights back in". By coming back into the state they basically surrendered. Thankfully, the unions still plan a court battle over the whole thing, but at this point they just need to catch one dem senator unaware and they could pass whatever they want.

[TheHammer]

The problem with arrest warrants is that the state constitution expressly forbids senators being arrested. They can be compelled to appear for a vote, but they can't be arrested, save for egregious offences, so long as they remain senators.

ARTICLE IV. LEGISLATIVE:

SECTION 15.

[Exemption from arrest and civil process.] Members of the legislature shall in all cases, except treason, felony and breach of the peace, be privileged from arrest; nor shall they be subject to any civil process, during the session of the legislature, nor for fifteen days next before the commencement and after the termination of each session.

I admit that fleeing the state in order to avoid taking a vote sets a bad precedent (and is a bad idea in general), but the fact is that they simply can't be arrested just because that's what the attorney general wants.

Well, I believe the "compelled to appear before a vote" was the extent of the "arrest". They wouldn't have seen jail time over it, or at least I highly doubt it.

[TimothyC]

The problem with arrest warrants is that the state constitution expressly forbids senators being arrested. They can be compelled to appear for a vote, but they can't be arrested, save for egregious offences, so long as they remain senators.

ARTICLE IV. LEGISLATIVE:

SECTION 15.

[Exemption from arrest and civil process.] Members of the legislature shall in all cases, except treason, felony and breach of the peace, be privileged from arrest; nor shall they be subject to any civil process, during the session of the legislature, nor for fifteen days next before the commencement and after the termination of each session.

I admit that fleeing the state in order to avoid taking a vote sets a bad precedent (and is a bad idea in general), but the fact is that they simply can't be arrested just because that's what the attorney general wants.

Ah well I was wrong then. My mistake.

Yeah, except for that whole thing where the people elected didn't campaign on union busting at all.

Then the people have their appeal via the ballot box and through the courts. This is how a representative republic works.

[Simon_Jester]

Timothy, It's still fair to complain when legislators abandon all other concerns to pursue an unpopular plan that they didn't campaign on. And it's generally poor practice for legislators to do so, even if they think it would be a good idea; it defeats much of the point of having elections if officials don't admit what their real agenda is before taking office.

The people of Wisconsin voted in a lot of Republicans. If they'd known ahead of time they were voting in union-busters who wanted to sell out state assets to the Koch brothers, they might have voted differently, not so?

[Stargate Nerd]

Timothy, It's still fair to complain when legislators abandon all other concerns to pursue an unpopular plan that they didn't campaign on. And it's generally poor practice for legislators to do so, even if they think it would be a good idea; it defeats much of the point of having elections if officials don't admit what their real agenda is before taking office.

The people of Wisconsin voted in a lot of Republicans. If they'd known ahead of time they were voting in union-busters who wanted to sell out state assets to the Koch brothers, they might have voted differently, not so?

Even ignoring the fact that the Republicans didn't campaign on Union Busting, they were acting like thugs the entire time. When the other sides shows utter contempt for the rules and the law, you'd be foolish to follow the rules yourself. It's called not being a pussy. Or rather not being a complete moron.

[TimothyC]

Timothy, It's still fair to complain when legislators abandon all other concerns to pursue an unpopular plan that they didn't campaign on. And it's generally poor practice for legislators to do so, even if they think it would be a good idea; it defeats much of the point of having elections if officials don't admit what their real agenda is before taking office.

The people of Wisconsin voted in a lot of Republicans. If they'd known ahead of time they were voting in union-busters who wanted to sell out state assets to the Koch brothers, they might have voted differently, not so?

Yes they probably would have have, and you will note that I agreed that the entire thing was in bad form, but I was responding to the implication that there was no reason for the orders that were issued to the state senators to return. I had hoped that my main point - That the Senators that left had done so in very bad form, and that they were derelict in their duty to the people who elected them - would have shone through. I am of the belief that while the republicans are guilty of the most numerous and egregious acts in this whole theatre, the Democrats are guilty of this one.

[TheHammer]

Timothy, It's still fair to complain when legislators abandon all other concerns to pursue an unpopular plan that they didn't campaign on. And it's generally poor practice for legislators to do so, even if they think it would be a good idea; it defeats much of the point of having elections if officials don't admit what their real agenda is before taking office.

The people of Wisconsin voted in a lot of Republicans. If they'd known ahead of time they were voting in union-busters who wanted to sell out state assets to the Koch brothers, they might have voted differently, not so?

Yes they probably would have have, and you will note that I agreed that the entire thing was in bad form, but I was responding to the implication that there was no reason for the orders that were issued to the state senators to return. I had hoped that my main point - That the Senators that left had done so in very bad form, and that they were derelict in their duty to the people who elected them - would have shone through. I am of the belief that while the republicans are guilty of the most numerous and egregious acts in this whole theatre, the Democrats are guilty of this one.

The Democratic senators who left the state were largely viewed favorably for having done so by the people who elected them. So I'd argue that they were doing their duty, in the process brought the attention to this issue that it deserved. If they'd simply capitulated to begin with its debatable how much support the unions would have been able to rally.

[Patrick Degan]

Annnnnnnd Scott Walker decides to say "fuck you" to the courts:

Wisconsin Republicans stunned the nation today when they published Governor Scott Walker’s anti-union bill in seeming violation of a restraining order. The legislation was enjoined from publishing by a judge who ruled that Republicans violated the Open Meeting law when passing it. By publishing their anti-union legislation and turning it into law, Scott Walker and the Republicans may have killed the bill.

Republicans skirted the judge’s order today by having the legislation published by an agency other than the specifically enjoined Secretary of State, claiming that the constitution does not specify which body must publish a law, while Democrats claim that the law must be published by the SOS.

Which body may or must publish the law appears a moot point, given the judge’s specific ruling, wherein it is clear that she is enjoining and restraining the bill in a much broader context than merely the SOS:

The Wisconsin State Journal reported:

An order signed March 18 by Dane County Circuit Judge Maryann Sumi bars La Follette from publishing the bill. But as she verbally issued her decision at the end of a hearing the same day, the scope of her order was broader.

“I do, therefore, restrain and enjoin the further implementation of 2011 Wisconsin Act 10,” Sumi said, according to a transcript. “The next step in implementation of that law would be the publication of that law by the secretary of state. He is restrained and enjoined from such publication until further order of this court.”

By attempting to go around the judge’s order, the Republicans violate the spirit of her ruling if not the letter of it. In any case, this won’t be the Wisconsin Republicans first run at violating the law in order to push their anti-union measure through.

It’s obvious from recent events, including the Wisconsin Republicans attempting to intimidate a Professor who wrote a critical article about their actions for The New York Times by demanding his emails through the Wisconsin Open Records law, that the Republicans are desperate. Apparently they are so desperate that they are no longer trying to hide their agenda under the guise of a budget issue, let alone pretend what they are doing is legal.

But what the Wisconsin Republicans have really done by publishing the anti-union bill is kill their own legislation. By publishing the bill, the Republicans have made it easier to fight in court, because it is now law and hence, can now be permanently overturned.

The Wisconsin State Journal reported:

By doing so, Pines said, the bureau made moot the actions currently before the state Supreme Court and the state Court of Appeals. He said that would actually simplify the case that District Attorney Ismael Ozanne has to make on the alleged open meetings violation by a legislative conference committee, now that he doesn’t have to worry about whether a judge has the authority to stop legislation before it takes effect.

“I suspect that if Judge Sumi was willing to take up a (temporary restraining order) against publication I suspect she’d do the same thing on enforcement (of the new law),” Pines said.

Pines said it also opens up legal channels for other groups who have been waiting to challenge the law but had to wait until it was enacted, like Madison Teachers Inc., which plans to file its own lawsuit on Monday. He said it has not been decided whether MTI will seek a restraining order or injunction barring enforcement of the law.

“This is going to unleash a tsunami of litigation,” Pines said.

The irony here is that they didn’t kill their bill by passing it without the necessary quorum, violating state Open Meeting laws or publishing it in violation of a judge’s order; they killed it with their own hubris. Now that it’s published, it is much easier to have it stopped permanently. It can and will be fought on all of the above grounds as well as countless others — amounting to a “tsunami of litigation” against the anti-union law.

By publishing this bill, Walker and the Wisconsin Republicans remind Americans about the fatal flaw of the modern day Republican Party: It and its leaders lack judgment. The publishing of this bill which was now not only passed while violating state law but now published in violation of a court order smells vaguely but sickeningly of George W Bush’s arrogant invasion of a sovereign nation. Just as Bush refused to wait for the UN, Walker and the Wisconsin Republicans could not allow the process to play out properly. Instead, they went all rogue cowboy and reminded us why we swore we’d never vote Republican again.

Republicans are great dictators, but they are terrible chess players. Wisconsinites will want to be sure to vote for their state Supreme Court justice on April 5. After all, dictators get into office when people stay home from the voting booth.

Scott Walker, in contempt of the people of Wisconsin and now in contempt of court. This man really needs to see the inside of a jail cell.

[SirNitram]

I now understand. 'Small government' means 'nothing to challenge me.'

[Ritterin Sophia]

Of course, it's quite simple. The less bureaucracy you have to go through, the less people you have to buy off.

[Patrick Degan]

Nothing that I have read in the Wisconsin statutes designates any agency other than the Secretary of State as the official charged with publication of laws. But then, it's become obvious that Walker and his advisers are operating under the Just Making Shit Up theory of law.

[Patrick Degan]

ADDENDUM: the above applies WRT state laws. County and municipal governments handle the publication of their own local ordinances and legal issues, of course.

[Molyneux]

Pardon my lack of knowledge, but what exactly can the court do in this circumstance?

[Elheru Aran]

Quick out of my ass point to respond that question, Molyneux--

The courts *could* issue arrest warrants for whoever decides to implement these laws. Whether the police would undertake arresting those responsible, is another question.

[Patrick Degan]

Judge Sumi again lowers the gavel on Scott Walker:

MADISON, Wis. — The showdown over Wisconsin's explosive union bargaining law shifted from the Statehouse back to the courthouse on Tuesday, but it remained unclear when or even whether the measure would take effect.

Republican lawmakers pushed through passage of the law earlier this month despite massive protests that drew up to 85,000 people to the state Capitol and a boycott by Democratic state senators. Opponents immediately filed a series of lawsuits that resulted in further chaos that might not end until the state Supreme Court weighs in.

That appeared even more likely after a hearing on Tuesday, when a Dane County judge again ordered the state to put the law on hold while she considers a broader challenge to its legality. She chastised state officials for ignoring her earlier order to halt the law's publication.

"Apparently that language was either misunderstood or ignored, but what I said was the further implementation of (the law) was enjoined," Dane County Circuit Judge Maryann Sumi said during a hearing. "That is what I now want to make crystal clear."

Sumi is set to hear additional arguments Friday on the larger question of whether GOP legislative leaders violated the state's open meetings law during debate on the measure. She also is considering Republican claims that the law technically took effect last weekend after a state agency unexpectedly published it online.

Whether she decides it did or didn't become law on Saturday, the measure's legitimacy will likely be decided by the state Supreme Court, which is already considering whether to take up an appeals court's request to hear the case.

The back and forth amplified the often angry debate between new Gov. Scott Walker, his Republican allies in the Legislature and the state's public sector unions.

Walker and the GOP have aggressively pushed forward their effort to remove the bargaining rights of state workers, using a surprise parliamentary maneuver to break a weeks-long stalemate to get it passed and then finding another route to publish the law after Sumi's order blocked the secretary of state from doing so.

State Department of Justice spokesman Steve Means said the agency continues to believe the law was properly published and is in effect.

Wisconsin Department of Administration Secretary Mike Huebsch, Walker's top aide, issued a statement saying the agency will evaluate the judge's order.

Earlier this month Sumi issued an emergency injunction in the case that blocked Secretary of State Doug La Follette from publishing the law. Republican leaders sidestepped the order, convincing the Legislative Reference Bureau, another state agency, to post the law on its website on Friday. The GOP declared that move amounted to publication and said the law would take effect Saturday.

Dane County Democratic District Attorney Ismael Ozanne – the plaintiff in the lawsuit heard Tuesday – argued the reference bureau can't publish a law without a date from the secretary of state. Attorneys for the state Department of Justice, which is representing the Republicans, argued the case means nothing because legislators are immune from civil lawsuits and the law is in effect.

The district attorney asked Sumi to declare that the law had not been published, but she refused to rule, saying she wanted to hear more testimony. But she issued the new restraining order, warning anyone who violates this one will face sanctions.

"Wisconsin working families hope that (Gov.) Scott Walker and his Republican allies in the legislature will finally begin to respect our state's judicial process and reverse any damage they've done to the working families of our state, Stephanie Bloomingdale, secretary-treasurer of the Wisconsin State AFL-CIO, said in a statement.

Justice Department attorneys maintain Sumi has no authority to intervene in the legislative process. And Assembly Speaker Jeff Fitzgerald, R-Horicon, said in a statement that once again Sumi has improperly injected herself into the legislative process.

"Her action today again flies in the face of the separation of powers between the three branches of government," Fitzgerald said.

The law has been a flashpoint of controversy since Walker introduced it in February.

The measure requires most public workers to contribute more to their pensions and health insurance. It also strips away their rights to collectively bargain for anything except wages. Walker, who wrote the law, insists the measure is necessary to help close the state's budget deficit. But Democrats see the law as a political move to cripple unions, who are traditionally among their strongest campaign supporters.

Tens of thousands of people staged almost non-stop demonstrations at the state Capitol for nearly three weeks and Senate Democrats fled the state for Illinois to block a vote in that chamber.

Republicans who control the Legislature ended the stalemate by removing what they said were the fiscal elements from the plan on March 9, allowing the Senate to vote without a quorum. The Assembly passed the measure the next day and Walker signed the measure into law on March 11.

Dane County Executive Kathleen Falk, a Democrat, and several unions have filed lawsuits challenging the Senate vote, arguing the final law still contains fiscal components. Those lawsuits are still pending.

Count on Republicans refusing to learn just what a court order means, however.

[SirNitram]

It's invoking Godwin, but this is disturbingly like the Enabling Act of 1933, passed by the Reichstag.

[Patrick Degan]

It's invoking Godwin, but this is disturbingly like the Enabling Act of 1933, passed by the Reichstag.

No, it would be if the people trying so desperately to ram it through were halfway competent. Making the GOP the party of the terminally stupid is starting to have blowback.

Scooter far more resembles Adenoid Hinkel than the other guy:

Humble pie and crow are becoming Scott Walker’s staple diet.

You may recall that it was wily Scotty who thought that the order preventing him from retracting workers rights in the State of Wisconsin was flawed because it only prevented him from having the Wisconsin Secretary of State publish his unilateral withdrawal of rights.

So he out maneuvered the Judge and State law and published it in a secondary gazette, which only achieved the goal of having Walker’s proposal published – not effecting his rogue law.

Now, after rolling on the floor at this move which was tantamount to the defiance of a tantrum throwing child, you may be speculating at the legal team guiding Scott and his Republican troubadours, through this national drive to ban unions from the shores of this democratic country.

With the billions that are in the coffers of Scott’s Tea Party, one would have expected that he would be outfitted with a legal dream team. After all, withdrawing people’s rights is no easy feat. Laws have to be repealed and there is a whole nation that has to be bamboozled. That cannot be done with only the incompetence of Scott and the mischievous speculation of Sarah and Michelle. Not even the new Conservative top man, Herman Cain, could pull this off with his dance to the back ground strains of the Motown sound and his mimicking the vernacular of the uneducated of his ethnic persuasion. Even that won’t amuse people enough for them to ignore the fact that bending over to laugh was actually an invitation to an unspeakable violation.

Now, the Judge has employed a sledge hammer to replace her gavel, just in case Scott may be ruminating with his billionaire handlers to find another way to disenfranchise the middle class. Now, she has reiterated that the Scott proposal has been enjoined and that she is now hypersensitive to any acts that may be interpreted as willful defiance of a court order.

Last I heard, Scott seemed very deflated. He was particularly concerned that his apparent political ineptitude would not earn an audition to address the John Birch Society – the ultimate yardstick to gauge arrival amongst the ranks of the Conservatives.

Reportedly he is gazing emptily through his office window. It is dawning upon him that he has used his proverbial two strikes. From all appearances the third is that recall that the electorate of Wisconsin is working so feverishly on.

And we all know the maxim – three strikes you’re out.