Wisconsin Supreme Courts Upholds Collective Bargaining Law

[Phil Skayhan]

Overturns Judge Sumi

Milwaukee Journal Sentinel"
...
The court ruled that Dane County Circuit Judge Maryann Sumi's ruling, which had held up implementation of the collective bargaining law, was void ab initio, or invalid from the outset.

In its decision, the state's high court concluded that "choices about what laws represent wise public policy for the state of Wisconsin are not within the constitutional purview of the courts."

The court concluded that Sumi exceeded her jurisdiction, "invaded" the Legislature's constitutional powers and erred in halting the publication and implementation of the collective bargaining law.

Text of the Decision
The court’s decision on the matter now presented is grounded in separation of powers principles. It is not affected by the wisdom or lack thereof evidenced in the Act. Choices about what laws represent wise public policy for the State of Wisconsin are not within the constitutional purview of the courts. The court’s task in the action for original jurisdiction that we have granted is limited to determining whether the legislature employed a constitutionally violative process in the enactment of the Act. We conclude that the legislature did not violate the Wisconsin Constitution by the process it used.

[Alyeska]

So the court declared that there is zero recourse for the legislature willfully violating the law and absolutely nothing to force them into abiding by it. Do they not understand the precedent this puts in place?

[Zaune]

So the court declared that there is zero recourse for the legislature willfully violating the law and absolutely nothing to force them into abiding by it. Do they not understand the precedent this puts in place?

I'm not sure which possibility depresses me more. That they don't, or that they do.

[Broken]

Are there any clever legal moves that can be attempted to kick this case into the federal court system? The idea that the any legislature is completely immune when breaking its own laws designed to keep it in check turns my stomach a little.

[Phil Skayhan]

Here is what the court addressed
Text of the Decision

In Goodland v. Zimmerman, 243 Wis. 459, 10 N.W.2d 180 (1943), the court focused on fundamental separation of powers principles and addressed whether a court has the power to enjoin publication of a bill duly enacted by the legislature. The court first explained that “governmental powers are divided among the three departments of government, the legislative, the executive, and judicial.” Id. at 466-67. The court then explained that the “judicial department has no jurisdiction or right to interfere with the legislative process. That is something committed by the constitution entirely to the legislature itself.” Id. at 467. The court held that “because under our system of constitutional government, no one of the co-ordinate departments can interfere with the discharge of the constitutional duties of one of the other departments, no court has jurisdiction to enjoin the legislative process at any point.” Id. at 468. The court noted that “f a court can intervene and prohibit the publication of an act, the court determines what shall be law and not the legislature. If the court does that, it does not in terms legislate but it invades the constitutional power of the legislature to declare what shall become law. This [a court] may not do.” Id.

¶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.

¶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. See Stitt, 114 Wis. 2d at 361. As the court has explained when legislation was challenged based on allegations that the legislature did not follow the relevant procedural statutes, “this court will not determine whether internal operating rules or procedural statutes have been complied with by the legislature in the course of its enactments.” Id. at 364. “[W]e will not intermeddle in what we view, in the absence of constitutional directives to the contrary, to be purely legislative concerns.” Id. The court’s holding in Stitt was grounded in separation of powers principles, comity concepts and “the need for finality and certainty regarding the status of a statute.” Id. at 364-65.

In what way is the Court's decision wrong? The final arbiter of the rules and procedure of the Wisconsin Legislature is that body itself. By law the courts cannot involve itself, even in the case of a violation, in the legislative process.

Are there any clever legal moves that can be attempted to kick this case into the federal court system?

Yes, an appeal. From a state supreme court it would go to the US Supreme Court.

But, even on the Federal level, you have this from the Constitution: "...Each House may determine the rules of its proceedings..." and there have been Supreme Court Decisions that have addressed this issue. It is likely that it would affirm the Wisconsin Supreme Court Decision.

[Simon_Jester]

We have an argument I find compelling in the dissenting opinions on this case, Phil. To quote one part of those arguments:

¶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. The District Attorney relies on Article IV, Section 10, "[t]he doors of each house shall be kept open," and also on Article I, Section 4: "The right of the people peaceably to assemble, to consult for the common good, and to petition the government, or any department thereof, shall never be abridged."
¶88 The legislature declared in the Open Meetings Law that the legislature would comply with the Law to the fullest extent "in conformance with article IV, section 10" of the Wisconsin Constitution.[4] Statutes are interpreted to give effect to every word. A court assumes that the legislature says what it means, and means what it says. The words in a statute are not to be treated as rhetorical flair.
¶89 Nevertheless, the Attorney General asserts that the legislature need not abide by the Open Meetings Law; that the legislature can choose when and if it will follow the Open Meetings Law; and that courts cannot enforce the Open Meetings Law against the legislature and any of its committees.[5]
¶90 The legislature must play by the rules of the Wisconsin Constitution and the laws.
¶91 Playing by the rules and playing fair are integral to public trust and confidence in our government officials——legislative, executive, and judicial. Public trust and confidence in the integrity of the judicial branch is engendered by a court's issuing a reasoned public decision based on public records after public arguments. The judicial branch claims legitimacy by the reasoning of its decisions. "Any step that withdraws an element of the judicial process from public view makes the ensuing decision look more like fiat and requires rigorous justification."[6]
¶92 Trust and confidence in the integrity of the judicial branch as an institution is critical at all times but especially when a case has high public visibility, is mired in partisan politics, and is emotionally charged. The need for reasoned judgment is at its greatest in a case such as this one, in which substantial public policy and budgetary decisions of the coordinate branches may be affected.[7] The issues presented in this case are steeped in a politically charged environment and involve highly controversial public policy and budgetary matters.
¶93 That the judiciary has the power of judicial review, that is, the power to interpret the Constitution and hear challenges to the constitutionality of legislative enactments, without pressure from the executive or legislative branches, is a fundamental principle of the United States and Wisconsin Constitutions.
¶94 This fundamental principle of judicial review was described in Federalist No. 78,[8] which emphasized the importance of the separation of powers and of an independent judiciary to ensure that legislative enactments are consistent with the constitution.

"There is no liberty, if the power of judging be not separated from the legislative and executive powers.
. . . .
The complete independence of the courts of justice is peculiarly essential in a limited Constitution. . . .
A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body."

¶95 Ascertaining the meaning of the Wisconsin Constitution and whether the enactment of the Budget Repair Bill complies with constitutional directives is the essence of the present case. And the court must do so adhering to the Constitution, laws, and its own rules of procedure.

Essentially, the problem is that the legislature is bound by constitutional requirements to conduct its business in an open and above-board fashion, rather than by backroom dealings and dirty tricks. That's pretty basic to any kind of functioning democracy; if you're relying on secrecy and parliamentary maneuver to end debate on a bill and pass it into law, you probably shouldn't be passing that bill in the first place. Your need to quash debate and use secrecy is a sign that you're trying to hide from popular discontent with what you're doing.

The problem, in my eyes, with this ruling, is that the legislature is not free to set its own procedures when those procedures violate the constitution that founded it, or when those procedures violate the basic premises of democracy. For an obvious example, the legislature does not have the right to abolish elections, or to rule that there will be no airing of debate on bills proposed to the legislature, or that the minority does not have a right to propose legislation. Doing such things makes a mockery of the law-making process and creates something that is to a working legislature what a kangaroo court is to a working judiciary.

That is why you have openness in the process, that is why the Wisconsin constitution mandates such openness, that is why earlier, wiser Wisconsin legislators passed laws detailing how the legislature would fulfill that mandate. And yet in disregard for this, the Republican majority in Wisconsin repeatedly used dirty tricks to try and pass the bill, in the face of intense popular discontent and adamant opposition from all the legislators not subject to Republican party discipline. They showed near total indifference to the legislative procedure established by long precedent in their state, being willing to overwrite or ignore those rules on a whim, as long as it let them remake the law in an image that pleased them in the least time possible.

Phil, bear in mind that if Democrats elsewhere ran roughshod over procedural rules and minority objections to the same degree as the Wisconsin Republicans did recently, we would live in a rather different-looking country, and one I doubt the Wisconsin Republicans would like as well.

[Phil Skayhan]

On an ethical standpoint, there is nothing which you wrote or that is in that portion of dissent that I disagree with. There is no good reason that notice of the meeting could not have been given earlier. But I'm not looking at this from a an ethical stance but rather a legal one.

VI

¶52 When the circuit court voided 2011 Wisconsin Act 10, it scrutinized the Wisconsin Open Meetings Law and concluded that there had been two violations of the law:

80. A violation of the Open Meetings Law occurred when the Joint Committee of Conference met on March 9, 2011, because it failed to provide at least 24 hours advance public notice of the meeting, as required by Wis. Stat. § 19.84(3), and failed to provide even the two-hour notice allowed for "good cause" shown.

81. A violation of the Open Meetings Law occurred when the Joint Committee of Conference met on March 9, 2011, and failed to provide reasonable public access to the meeting, as required by Wis. Stat. § 19.83(1).

¶53 The circuit court acknowledged that Senate Chief Clerk Robert Marchant had advised Senate Majority Leader Scott Fitzgerald that no advance notice of the Joint Committee on Conference was required because the Senate and Assembly were in special session. The court acknowledged that Marchant relied on Senate Rule 93(2), which provides that, when in special session, "notice of a committee meeting is not required other than posting on the legislative bulletin board[.]" Finding of Fact No. 15.

¶54 But the court found that, "No Joint Rule in effect on March 9, 2011, conflicts with the requirements of the Open Meetings Law that a public notice of every meeting of a governmental body must set forth the time, date, place and subject matter of the meeting, in a form reasonably likely to inform members of the public and news media, and that the notice shall be given at least 24 hours before the meeting." Finding of Fact No. 19. Thus, the court concluded: "There is no rule adopted by the legislature, applicable to the March 9, 2011, meeting of the Joint Committee of Conference, that conflicts with any requirement of the Open Meetings Law, within the meaning of Wis. Stat. § 19.87(2)."

EDIT: changed "a partisan" to "an ethical" since I had a brain fart in organizing my thoughts.

[Simon_Jester]

For reference, full text of Judge Sumi's ruling.

Perhaps I am misreading Paragraph 54 of the ruling, but it seems to me that that doesn't mean what Prosser wants it to mean.

No joint rule in effect on 3/9/2011 conflicted with the requirements of the Open Meetings Law. Now, Sumi appears to have written that in reference to a passage from the Open Meetings Law, saying: "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." In other words, if the legislature were following its own by-laws, and these by-laws contradicted the Open Meetings Law, the Open Meetings Law would be trumped by the by-laws.

However, Sumi then says that "two days of testimony, numerous exhibits and multiple briefs have revealed nothing that would support a finding that a conflicting legislative rule was in effect at the time."

In other words, while a rule of the legislature could trump the Open Meetings Law, no such rule was in effect at the time. The legislature did not have or create any law which would allow them to ignore the Open Meetings Law; the majority simply decided to ignore it.

If a joint rule had been in effect on 3/9/2011 which conflicted with the requirements of the Open Meetings Law, then the secret meeting would have been all right under the Open Meetings Law. But there was no such joint rule in effect. Therefore, it was not all right.

Prosser appears to have ignored, or deliberately misunderstood, this very basic point in Sumi's ruling.
________________

Moreover, it is worth noting that at this meeting, the majority in the legislature took it upon themselves to pass a law. This would seem to be a clear violation of the spirit of the Open Meetings Law, aside from the basic "this is a shitty way to run a democracy" issue. Because if the Open Meetings Law means anything, it means that the legislature cannot pass laws without informing the public that it will convene to pass a law. If the law-making process itself can be a secret, everything else can be a secret, and the Open Meetings Law is made into a farce.