The status of 2011 Wisconsin Act 10

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There's a lot of ground to cover here, so I apologize in advance for the wall of text.

The administration of Governor Walker today filed a petition with the State Supreme Court, seeking a supervisory writ to throw out the open meetings case over this bill currently being heard by Judge Sumi.

[size=18]Context[/size]:
In early February, newly-elected Governor Scott Walker put forward a bill intended to address Wisconsin's looming budgetary issues. It included salary and benefit cuts for public-sector employees, as well as provisions that eliminated the right to collective bargaining for some, and made it significantly harder for others (by declaring the state would no longer withhold union dues, mandating annual re-certification of union representation, declaring that unions could not negotiate for anything other than salary, and capping salary increases at cost-of-living unless expressly approved via referendum). Things have gotten acrimonious, and after the Democratic members of the Senate fled the state to prevent a quorum (required for all bills addressing fiscal matters), the anti-union provisions were split out and passed as 2011 Wisconsin Act 10. Unfortunately, in the course of passing it, the GOP may have violated Wisconsin's Open Meetings Law.

[size=18]Timeline[/size]:
March 9th
- Wisconsin Senate passes 2011 Wisconsin Act 10 (the CBA provisions from Governor Walker's original bill). This is in violation of Wisconsin Law § 19.84, as insufficient notice was given. Specifically, notice went out after 4pm for a 6pm meeting.
March 10th
- Wisconsin Assembly passes 2011 Wisconsin Act 10
March 11th
- Governor Walker signs 2011 Wisconsin Act 10
March 18th
- Judge Sumi issues a temporary restraining order (important quote: "I do, therefore, restrain and enjoin the further implementation of 2011 Wisconsin Act 10" - note that it does not mention either the Secretary of State or the LRB, though the LRB wasn't named as a party to the suit)
March 25th
- Wisconsin's Legislative Reference Bureau publishes 2011 Wisconsin Act 10

The bill, as published by the LRB, would appear to indicate that it was part of the Special Session:

IMAGE(https://img.skitch.com/20110326-rkks884aiibd9raas14smcf9sn.preview.jpg)

[size=18]Relevant Statutes[/size]:

Wisconsin Law[/url]]19.84 Public notice.

(3) Public notice of every meeting of a governmental body shall be given at least 24 hours prior to the commencement of such meeting unless for good cause such notice is impossible or impractical, in which case shorter notice may be given, but in no case may the notice be provided less than 2 hours in advance of the meeting.

I haven't heard it articulated yet, but I expect the loophole that they'll try to use to avoid being found in violation of § 19.84 will be the Senate rules regarding special sessions.

SENATE RULE 93. Special, extended or extraordinary sessions. Unless otherwise provided by the senate for a specific special, extended or extraordinary session, the rules of the senate adopted for the regular session shall, with the following modifications, apply to each special session called by the governor and to each extended or extraordinary session called by the senate and assembly organization committees or called by a joint resolution approved by both houses:
(1) No senate bill, senate joint resolution or senate resolution shall be considered unless it is germane to the subjects enumerated by the governor in the special session proclamation and is recommended for introduction by the committee on senate organization or the joint committee on employment relations.
(2) No notice of hearing before a committee shall be required other than posting on the legislative bulletin board, and no bulletin of committee hearings shall be published.

Section 2 provides that they don't have to give any notice. WI State law allows for a special session to run concurrently with a normal legislative session, and since Governor Walker did order a special session in January, this would superficially appear to be a defense.

Except that Section 1 of the same rule provides that special sessions may only consider resolutions enumerated in the proclamation declaring the special session.

Governor Walker's proclamation doesn't mention anything about unions or collective bargaining.

[size=18]Summary[/size]:

As I see it, there are three issues in play right now:

1) Was 2011 Wisconsin Act 10 passed in violation of § 19.84?
2) Does Judge Sumi have the authority to order that publication be halted pending a lawsuit over the possible violation of § 19.84?
3) Is release by the LRB a necessary and sufficient condition for 2011 Wisconsin Act 10 to become law?

There was a previous thread about the actions by Governor Walker and our state GOP here. That one got sent to fat camp. Let's keep this one focused on Wisconsin Supreme Court election - I'll create others for specific topics like the eventual efforts to recall Governor Walker when there's something new to discuss. There's already a thread about the State Senate recall efforts here, and one about the Supreme Court Election here.

Also: I'd like to plead for us all to make room for dissenting opinions and reasonable debate.

I have a simple question but if the Democrats were to retake the house and senate in 2012 and win the gov in 2014, all they would need to do is vote to change the rules back?

Ulairi wrote:

I have a simple question but if the Democrats were to retake the house and senate in 2012 and win the gov in 2014, all they would need to do is vote to change the rules back?

I don't know the answer to that. I expect the answer is yes, but am open to hearing from anyone more informed.

That question does segue fairly nicely to something else I've been confused about. My understanding is that the Wisconsin GOP would bypass this entire legal morass if they introduced the bill again, with appropriate notice, and passed it (Judge Sumi has even said as much). The fact that they have not done so is baffling. The only reason I can think of is that they may not be confident of passing it a second time - if two other GOP senators joined Dale Schultz (R - district 17) in voting "nay", the bill would fail.

That might also provide legal fodder for a lawsuit that argues that they passed the bill improperly, Dimmer.

Ruling from Judge Sumi today in one of the lawsuits to stop 2011 Wisconsin Act 10.

Wisconsin State Journal[/url]]Dane County Circuit Judge Maryann Sumi said that the county, along with County Executive Kathleen Falk and County Board Chairman Scott McDonell, do not have authority under state law to challenge the constitutionality of state laws and dismissed their lawsuit against state Department of Administration Secretary Mike Huebsch and state Department of Health Services Secretary Dennis Smith.

Not totally surprising. The other case against the state regarding 2011 Wisconsin Act 10 was filed by the Dane County DA. In her original temporary restraining order in that case, Judge Sumi explicitly referred to the Open Meetings Law, subsection (3) of §19.97 in her judgement, which reads "Any action taken at a meeting of a governmental body held in violation of this subchapter is voidable, upon action brought by the Attorney General or the District Attorney of the county wherein the violation occurred." The Dane County DA is who filed that suit, and Dane County is where our State Capitol is located. To my eye, they're the correct party to be suing to prevent 2011 Wisconsin Act 10 from becoming law.

Yep, that sounds like the right way to handle it. It's written right into the law. Be interesting to see how it comes out.

Given that:

* Open Meetings Law, subsection (3) of §19.97 reads "Any action taken at a meeting of a governmental body held in violation of this subchapter is voidable, upon action brought by the Attorney General or the District Attorney of the county wherein the violation occurred."
* Testimony already given confirms that notice happened after 4pm for a 6pm meeting

I expect the action to be voided.

(I'm not a lawyer, and would love to hear an argument in support of Act 10 standing as passed, if anybody has one.)

The arguments I've seen here so far seem to consist of 'well, they were only a few minutes late', which I don't think will fly. Plus, allowing the 2-hour window requires an emergency condition be declared, and the fact that the bill might not pass tomorrow does not constitute an emergency today.

There was a brief hearing before Judge Sumi today - the Dane County DA asked for an extension on his filing deadline, citing staffing issues.

Even though opposing counsel had no issue with it Judge Sumi refused the request (even though opposing counsel had no issue with it), saying that there was "real urgency" to the issue. Dane County DA will file by April 27, Department of Justice response May 18, Dane County DA rebuttal May 23.

Feels like a mis-step on the part of Mr Ozanne (the Dane County DA). Surely he should have seen this coming more than a week out.

(Info from a series of tweets by a local reporter).

Our state's GOP legislators unveiled a new, interesting strategy today.

Wisconsin State Journal[/url]]Republican legislative leaders said Wednesday that if the courts have not ruled on the legality of the collective bargaining bill passed earlier this year by early June, it will be added into the state budget by the Joint Finance Committee.

Senate Majority Leader Scott Fitzgerald and Speaker Jeff Fitzgerald both told The Associated Press that it would make the most sense for the committee to add the language into the budget before it comes up for debate before the full Legislature.

However, both Fitzgeralds are hoping the courts rule that the bill passed in March is legal and can take effect so further legislative action isn't necessary. The state Supreme Court has been asked to take the case, but it has not said if it will. Two lawsuits are pending in circuit court.

Gov. Scott Walker supports putting the issue in the budget if the courts haven't ruled by the time that comes to the Legislature for a vote.

Why is it important to get the Collective Bargaining provisions into law in June, when they've been so reluctant to put them to a proper vote?

Oh right - recall elections in early July.

I suspect that could result in a judge suspending the budget, couldn't it?

At this point, I have to admit a grudging admiration for the no holds barred, scorched earth, move forward at all costs policy the GOP is adopting here.

I can't help but compare this to the healthcare battle back in 2010, and the way the GOP has managed to get so far despite such enormous unpopularity and legal challenges is pretty impressive. It makes me think Obama could've avoided getting a public option scrapped if he'd just plowed through.

I suppose we'll see in July if the GOP burned too much capital, or if betting on the short memories of the public was a smart choice.

Obama didn't want the public option; he'd already promised it away very early in the process.

Robear wrote:

I suspect that could result in a judge suspending the budget, couldn't it?

I don't think so. The lawsuit over 2011 Wisconsin Act 10 is over the clear violation of § 19.84. Judge Sumi has acknowledged that passing the law properly would make the case moot, and has openly asked why the Walker Administration is taking up court time when they have the means to pass the legislation correctly. The only reason I've heard that would explain that reticence is that they're not confident they'd have the votes in the Senate. Impending recall elections would force them to pull the trigger.

Here's something I had not heard about until today. Judge Sumi's son used to work for the AFL-CIO and SEIU.

Maryann Sumi has a clear conflict of interest. Her son is a political operative who also happens to be a former lead field manager with the AFL-CIO and data manager for the SEIU State Council. Both the SEIU and the AFL-CIO have members who are public-sector employees in Wisconsin. In fact, as a federation, the AFL-CIO can boast of several member-unions that represent public-sector employees.

Isn't this a conflict of interest that should have kept her from taking this case?

I think there's got to be some evidence that she's biased, beyond just "oh, she had a relative who worked for them once"... Maybe she took money from people with a stake in the issue, like Justice Thomas before Citizens United... But then he didn't recuse himself in that case.

Is there evidence that she's biased in that way?

MattDaddy wrote:

Here's something I had not heard about until today. Judge Sumi's son used to work for the AFL-CIO and SEIU.

Maryann Sumi has a clear conflict of interest. Her son is a political operative who also happens to be a former lead field manager with the AFL-CIO and data manager for the SEIU State Council. Both the SEIU and the AFL-CIO have members who are public-sector employees in Wisconsin. In fact, as a federation, the AFL-CIO can boast of several member-unions that represent public-sector employees.

Isn't this a conflict of interest that should have kept her from taking this case?

Why? She didn't work for the SEIU or the AFL-CIO. There's every possibility that she and her son have opposing political thoughts and ideas. Just look at Ronald Reagan and his second son.

More to the point, I think she's been very even-handed throughout the proceedings (at least, so far).

Testimony from the administration has acknowledged that less than two hours notice was given. § 19.84 of Wisconsin law is explicit that two hour notice is a minimum, only to be used in emergencies. § 19.97 clearly states that any action taken by government in violation of that notice may be voided, via action taken by the state AG or the appropriate county DA (in this case, it'd be Mr. Ozanne, the Dane County DA). Judge Sumi has dismissed lawsuits against 2011 Wisconsin Act 10 from other parties who don't have proper standing, and refused an extension requested by the Dane County DA, even when opposing counsel had no objections.

Robear wrote:

I think there's got to be some evidence that she's biased, beyond just "oh, she had a relative who worked for them once"... Maybe she took money from people with a stake in the issue, like Justice Thomas before Citizens United... But then he didn't recuse himself in that case.

Is there evidence that she's biased in that way?

It seemed fine to doubt Kathy Nickolaus' motives because she worked for Prosser in the past. From that thread:

Given Kathy Nickolaus' history with Prosser, I think it's still sensible to investigate the Waukesha vote for irregularities

The best evidence that she's not going into this with an open mind is this:

In Sumi’s brief, lawyers Marie Stanton and Dean Strang also asserted on Sumi’s behalf that the conference committee likely did violate the state’s open meetings law with its hastily convened meeting, in which it approved a stripped-down budget repair bill that removed fiscal elements, then sent the bill on to the Assembly and the Senate for votes. The measure passed and was signed by Gov. Scott Walker.
Legislative leaders likely did not provide proper public notice for the meeting, Sumi’s lawyers wrote.

If the case hasn't been heard yet, how can she say it's "likely" the rules were not followed?

MattDaddy wrote:
Robear wrote:

I think there's got to be some evidence that she's biased, beyond just "oh, she had a relative who worked for them once"... Maybe she took money from people with a stake in the issue, like Justice Thomas before Citizens United... But then he didn't recuse himself in that case.

Is there evidence that she's biased in that way?

It seemed fine to doubt Kathy Nickolaus' motives because she worked for Prosser in the past. From that thread:

Given Kathy Nickolaus' history with Prosser, I think it's still sensible to investigate the Waukesha vote for irregularities

Nickolaus was hired by and worked for Prosser for 13 years so, yeah, it's incredibly suspicious when she's the one who mysteriously finds the winning votes for him. Doubly so because of her previous involvement in political fraud and her "creative" approaches to counting votes that violated who knows how many rules and procedures.

That's entirely different than a judge who's son worked a single election cycle for the AFL-CIO and who now has a career that is completely independent from the organizations in question.

MattDaddy wrote:

The best evidence that she's not going into this with an open mind is this:

In Sumi’s brief, lawyers Marie Stanton and Dean Strang also asserted on Sumi’s behalf that the conference committee likely did violate the state’s open meetings law with its hastily convened meeting, in which it approved a stripped-down budget repair bill that removed fiscal elements, then sent the bill on to the Assembly and the Senate for votes. The measure passed and was signed by Gov. Scott Walker.
Legislative leaders likely did not provide proper public notice for the meeting, Sumi’s lawyers wrote.

If the case hasn't been heard yet, how can she say it's "likely" the rules were not followed?

At the risk of repeating myself:

* Open Meetings law §19.84 mandates 24-hour notice for a government meeting, with an exception for emergencies of a minimum 2 hour notice
* Open Meetings Law, subsection (3) of §19.97 reads "Any action taken at a meeting of a governmental body held in violation of this subchapter is voidable, upon action brought by the Attorney General or the District Attorney of the county wherein the violation occurred."
* Testimony already given confirms that notice happened after 4pm for a 6pm meeting

I think that "likely" is actually generous.

As noted before, Judge Sumi has already stated that the Wisconsin GOP has an available remedy which would render the court challenges moot (namely, passing the bill with appropriate notice). I fully expect that the Fitzgerald brothers will lean on their legislative membership and attempt to do exactly that, ahead of the July recall elections.

OG_slinger wrote:

Nickolaus was hired by and worked for Prosser for 13 years so, yeah, it's incredibly suspicious when she's the one who mysteriously finds the winning votes for him. Doubly so because of her previous involvement in political fraud and her "creative" approaches to counting votes that violated who knows how many rules and procedures.

Funny that she didn't "find" any votes though. The votes were always there, she missed including them in her totals. So yeah, that's not really suspicious, just sloppy.

After re-reading Robears comment, I want to make clear that I'm not saying Sumi is being biased. He seems to have taken my inquiry about a potential conflict of interest and implied that I think she is biased. I'd say that she would have some potential conflict of interest here and she should not have been the one to take the case.

MattDaddy, in the WI Supreme Court thread[/url]]

Dimmerswitch wrote:

The budget bill isn't delayed one way or the other by the results of the state Supreme Court election. Like I noted in the other thread, the Wisconsin GOP can render the current lawsuits entirely moot by passing the bill correctly.

At this point it hasn't been ruled that they voted incorrectly the first time. It's also been noted that there are reasons for them not to want to pass the bill again.

(Moving the discussion here, since it'd be a derail in the Supreme Court thread)

It's true that Judge Sumi hasn't issued a judgement yet, but she had issued a temporary restraining order enjoining publication of the law - something that Senator Fitzgerald attempted to circumvent by pressuring the LRB to post 2011 Wisconsin Act 10 on their website.

It's possible that I'm blind, but I don't think I've seen anyone else post reasons that the WI GOP wouldn't want to pass the bill again. I even dug through the original WI union thread - the closest I came was your post supporting a re-vote.

I'd love to hear reasons for them not doing a re-vote, other than the fear that two Republicans might join Dale Schultz in voting "nay".

After re-reading Robears comment, I want to make clear that I'm not saying Sumi is being biased. He seems to have taken my inquiry about a potential conflict of interest and implied that I think she is biased. I'd say that she would have some potential conflict of interest here and she should not have been the one to take the case.

But you have not presented anything beyond your suspicion - your concerns above were handily addressed - and you failed to mention that she *dismissed* several other cases against the governor in this matter, which mitigates against her being biased against him.

So she's taken action in a way that argues for her even-handedness in this matter, but not in a way which supports your worry. It's fine to cite relationships, but without actions, collusion or the like, it's just supposition, isn't it?

Again with the accusatory tone. It's not my "suspicion" or "worry". I'm not trying to prove bias, even though you continue to try and push me to do so.

Definition:

A conflict of interest (COI) occurs when an individual or organization is involved in multiple interests, one of which could possibly corrupt the motivation for an act in the other.
A conflict of interest can only exist if a person or testimony is entrusted with some impartiality; a modicum of trust is necessary to create it. The presence of a conflict of interest is independent from the execution of impropriety. Therefore, a conflict of interest can be discovered and voluntarily defused before any corruption occurs.

So your asking for proof doesn't even apply here.

Whatever, I just wanted to mention the connection and inquire if anyone here saw any reason for a conflict of interest, not be the defendant of the issue.

MattDaddy wrote:

Again with the accusatory tone. It's not my "suspicion" or "worry". I'm not trying to prove bias, even though you continue to try and push me in that direction. Whatever, I just wanted to mention the connection and inquire if anyone here saw any reason for a conflict of interest, not be the defendant of the issue.

I don't think Robear's tone is accusatory.

The AFL/CIO is not a party to the lawsuit brought by DA Ozanne, though obviously it has a lot at stake. Her son doesn't work for them now. Judge Sumi and her husband have donated to both parties in the past.

Sure, a situation like that has the potential for a conflict of interest - but Judge Sumi's actions so far have been a model of even-handedness, in my view.

The reason folks were more wary about a possible conflict of interest with Kathy Nickolaus had more to do with her following irregular procedures (including keeping the vote totals on her laptop) even after being chastised for doing so, and then discovering after the election that she'd forgotten to save data that put her former boss almost exactly above the 0.5% margin that allowed a state-paid recount.

[Edit: I see MattDaddy's post has been edited. I think I'd argue the possibility of a conflict of interest is only problematic insofar as there's any bias or opacity in the decision-making process. If folks want to discuss Kathy Nickolaus in greater depth, we've got a thread for it.]

Again with the accusatory tone. It's not my "suspicion" or "worry". I'm not trying to prove bias, even though you continue to try and push me to do so.

The article you cited accused her of having a conflict of interest. You did not give any information opposing that; you defended the idea that no proof was needed to suspect her, based on someone else's comment about a different issue in a different thread; and you stated "...the best evidence she's not going into this with an open mind is...", all of which I took to be indicators that you felt she was biased.

If you want to change that, feel free, but I simply asked you justify your belief. Instead, you denied it, and then decided I was being "accusatory". Sorry. I thought I was asking you to present evidence, not accusing you of anything. I've been civil here, I believe.

Dimmerswitch wrote:

I'd love to hear reasons for them not doing a re-vote, other than the fear that two Republicans might join Dale Schultz in voting "nay".

While the particular circumstances of this bill make it clear that the re-vote is a valid option, I don't ever like hearing the argument "well, you could just pass it again in a way I like" as part of the democratic process. There will always be hard fought battles to pass controversial bills, and I think the right way to fight this one is through the courts.

Yes, the bill could be passed again to avoid the court battle, but I don't for a second think that if they don't vote or pass the bill again that would make the original bill any less valid. The bill is invalid (IMO) because they violated state law NOT because they refuse to vote again. The ability to vote the bill through again is a potential solution to this situation, not any proof of the validity or invalidity of the original.

Jolly Bill wrote:
Dimmerswitch wrote:

I'd love to hear reasons for them not doing a re-vote, other than the fear that two Republicans might join Dale Schultz in voting "nay".

While the particular circumstances of this bill make it clear that the re-vote is a valid option, I don't ever like hearing the argument "well, you could just pass it again in a way I like" as part of the democratic process. There will always be hard fought battles to pass controversial bills, and I think the right way to fight this one is through the courts.

Yes, the bill could be passed again to avoid the court battle, but I don't for a second think that if they don't vote or pass the bill again that would make the original bill any less valid. The bill is invalid (IMO) because they violated state law NOT because they refuse to vote again. The ability to vote the bill through again is a potential solution to this situation, not any proof of the validity or invalidity of the original.

I agree entirely that the validity of the original vote is not connected at all with the WI GOP's apparent reluctance to pass it again - if that's how my quoted excerpt came across, I did a poor job of communicating. That sentence was in response to "there are reasons for them not to want to pass the bill again". I haven't seen any reasons given in the various WI threads, and am genuinely curious to hear any of those arguments. (I assume there are some, as otherwise the WI GOP reluctance to pass it again is pretty baffling).

No problem Dimmer, my post was just based on seeing that statement repeated a few times and wanting to clarify.

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