The status of 2011 Wisconsin Act 10

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

Judges do this all the time. It's part of the judicial process. Very frequently, parties will ask for immediate relief of some kind (a preliminary injunction), which the judge has to grant or not grant based on the likelihood of one party prevailing. It's a guess, and they can and do change their minds once they've examined the evidence and arguments.

They can impose an injunction without having (yet) heard the case.

I gotta say, the 'I'm just raising questions' is a very cheap rhetorical tactic. They've been 'raising questions' about Obama's birth certificate for years. If you're 'just raising questions', you are deliberately confusing the issue.

Instead, do some investigation and make concrete accusations. Don't "raise questions", provide answers. Don't make suggestive leading comments, hoping your audience bites and goes in a direction you want them to go, without you having to actually provide the evidence.

And don't play the martyr when people get short with you for waffling.

Hey Malor, it's a discussion forum. Every post doesn't have to be a accusation or provide answers. There was nothing suggestive or leading about my inquiry on the potential conflict of interest. I know that audience here will not be "going in a direction I want them to", so accusing me of that makes no sense.

I wasn't waffling either. I never said she was biased. Robear asked if there was any evidence she was, and I provided the only possible evidence I read about. That doesn't mean I'm holding that position, and I stated multiple times that I wasn't. I wouldn't have posted it if I thought it would be taken as my stance on the matter, but he asked a direct question and I recalled the part from the article that fit. I did question the use of "likely" because it sounded odd that a judge would say that prior to hearing the case. That doesn't mean I think she is being biased, but it does raise a valid question, which is why I asked. Later on I realized that I didn't want to get dragged into debating bias when that wasn't even part of the initial conflict of interest issue. I went into automatic defense mode in response to what I see as certain others' automatic attack modes. My bad in that regard.

Stop trying to tell me what I'm allowed to do here and inferring I am being dishonest. You've been banned here before, I haven't. I'd worry more about yourself and stop trying to harass me every chance you get.

I wasn't waffling either. I never said she was biased. Robear asked if there was any evidence she was, and I provided the only possible evidence I read about. That doesn't mean I'm holding that position, and I stated multiple times that I wasn't. I wouldn't have posted it if I thought it would be taken as my stance on the matter, but he asked a direct question and I recalled the part from the article that fit. I did question the use of "likely" because it sounded odd that a judge would say that prior to hearing the case. That doesn't mean I think she is being biased, but it does raise a valid question, which is why I asked. Later on I realized that I didn't want to get dragged into debating bias when that wasn't even part of the initial conflict of interest issue. I went into automatic defense mode in response to what I see as certain others' automatic attack modes. My bad in that regard.

Fair enough.

Judge Sumi ruled this morning that 2011 Wisconsin Act 10 is null and void

Wispolitics blog[/url]]Sumi ruled the evidence was “clear and convincing” that a conference committee failed to comply with the law in a hastily called meeting in March to push through legislation containing the collective bargaining changes. Sumi also noted lawmakers had the opportunity to correct the violation and eliminate the case entirely by simply providing timely notice of a new committee meeting and passing the legislation again.

GOP legislative leaders have said doing so would be an admission they did something wrong, which they have steadfastly contended they did not.

But Sumi disagreed, saying doing so would not have been an admission of guilt and could have “prevented the needless expenditure of taxpayer money to continue this lawsuit.”

“This case is the exemplar of values protected by the Open Meetings Law: transparency in government, the right of citizens to participate in their government, and respect for the rule of law,” Sumi wrote. “It is not the court’s business to determine whether 2011 Wisconsin Act 10 is good public policy or bad public policy; that is the business of the Legislature. It is this court’s responsibility, however, to apply the rule of law to the facts before it.”

Full judgement here (warning, PDF link).

So now they go back and revote, correct? Do they still have the votes? Are Wisconsinites still parked outside?

Seth wrote:

So now they go back and revote, correct? Do they still have the votes? Are Wisconsinites still parked outside?

I'm kind of curious about that, myself.

I still haven't heard any serious argument about why they haven't simply passed the law correctly, so I'm very suspicious that they're not confident of getting the votes (at least in the senate).

The Walker administration can also appeal to the state Supreme Court, and the recent confirmation of Prosser's re-election would mean they'd be likely to have a friendly court - though §19.84 and §19.97 do seem pretty clear, so I'm not sure how they'd overturn Judge Sumi's ruling.

Dimmerswitch wrote:
Seth wrote:

So now they go back and revote, correct? Do they still have the votes? Are Wisconsinites still parked outside?

I'm kind of curious about that, myself.

I still haven't heard any serious argument about why they haven't simply passed the law correctly, so I'm very suspicious that they're not confident of getting the votes (at least in the senate).

The Walker administration can also appeal to the state Supreme Court, and the recent confirmation of Prosser's re-election would mean they'd be likely to have a friendly court - though §19.84 and §19.97 do seem pretty clear, so I'm not sure how they'd overturn Judge Sumi's ruling.

As I mentioned on the previous page... I think being forced to revote on something you believe is valid to please those who oppose the bill creates barriers to the democratic process. I think lawmakers would have to be extremely jaded, hypocritical, or ignorant to think that the law was valid as passed, but if they believe it was I think it does represent a serious argument for why they shouldn't have to pass it again.

My problem with the process is that no one wants to show 'weakness' by changing their mind when presented with a clear and convincing argument to the contrary. So there's no effective way of backing out once you've committed to something. Since that is the case, I suspect hey will appeal as opposed to vote again.

Jolly Bill wrote:

As I mentioned on the previous page... I think being forced to revote on something you believe is valid to please those who oppose the bill creates barriers to the democratic process. I think lawmakers would have to be extremely jaded, hypocritical, or ignorant to think that the law was valid as passed, but if they believe it was I think it does represent a serious argument for why they shouldn't have to pass it again.

I see where we differ. If our state's GOP genuinely believed 2011 Wisconsin Act 10 was legally passed the first time, I'd expect at least a token effort at justifying why they thought that was the case - rather than the unsupported assertion I've seen repeated. Color me optimistic I guess - I simply don't believe that our state GOP is ignorant enough to believe that the law was legally passed.

They KNOW it wasn't legally passed. But why they refuse to legally pass it is beyond me. 24 hours notice, hold the vote, it's done.

The Wisconsin Attorney General's office apparently is pushing for recusal, and sent a letter (warning, PDF link) the day before Judge Sumi's decision was released.

Unlike the nonsense about her son, this may potentially have legal merit. The crux seems to be that Judge Sumi's counsel submitted a brief to the state Supreme Court (concerning the Walker administration's petition to have them revoke her jurisdiction and take the case directly). The brief takes the position that an act of the legislature can be voided as a result of an Open Meetings Law violation. SCR 60.04(4) governs cases where a judge should be recused.

Wisconsin SCR 60.04(4) (f) wrote:

The judge, while a judge or a candidate for judicial office, has made a public statement that commits, or appears to commit, the judge with repesct to any of the following:
1) An issue in the proceeding.
2) The controversy in the proceeding.

It's possible to argue that a brief submitted by her lawyer is not equivalent to Judge Sumi making a public statement, but I think the stronger objection would be that citing a statute is not giving an opinion.

Open Meetings Law, subsection (3) of §19.97 wrote:

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.

I haven't been able to find the text of the brief the Attorney General's office is objecting to, so there's certainly the potential that Judge Sumi's crossed a line - but I have a hard time buying the argument that "Can an act of the Legislature be voided as a result of Open Meetings Law violations?" is either an issue or a controversy in the case Judge Sumi has ruled on.

Interesting. It looks like they will appeal (based on the theory that the law does not actually allow a court to void an action of a governmental body) and that they will also argue that Sumi should have recused herself, because if this is actually an issue, she participated in the case by filing a brief. So they may be going for broke, trying to argue that the Open Meetings law does *not* allow the action to be voided.

At the time her lawyer raised the defense, it was not a point of controversy in the case. It still isn't, as far as I know.

Plus, since they argued that she should be recused, I think it would be an incredible act of mental gymnastics to claim that her lawyer raising specific points in her defense in and of themselves mean she should be recused.

I think essentially any judge would rule the way she ruled. The law is exceptionally clear and well-written. The conservatives are trying to save face, trying to blame an outcome they don't like on 'a liberal judge', instead of admitting that they just screwed up and need to do it over.

Remember the DOJ's petition to have our state Supreme Court vacate that temporary restraining order? A motion's been filed to have it dismissed.

Wisconsin State Journal[/url]]A motion by lawyers for state Sen. Mark Miller, D-Madison, and state Rep. Peter Barca, D-Kenosha, argues that the case is moot now that Dane County Circuit Judge Maryann Sumi issued a final order in an open meetings lawsuit brought by Ozanne.

And in a separate filing, Ozanne wrote that there’s no longer a need for the Supreme Court to intervene in the open meetings lawsuit now that Sumi has issued her order, because her order can be appealed.

In April, DOJ and the state Department of Administration filed a petition for supervisory writ asking that the Supreme Court vacate prior temporary orders issued by Sumi, alleging that Sumi had overstepped her authority. The orders put a halt to implementation of a law stripping most collective bargaining rights from most public employee unions.

The Supreme Court is currently scheduled to begin hearings for the DOJ motion this coming monday.

One interesting wrinkle in the article: the state attorney general is apparently prohibited from arguing against the constitutionality of a statute. That would seem like a pretty big obstacle for the DOJ, as finding the Open Meetings Law unconstitutional seemed like one of the only avenues available for finding 2011 Wisconsin Act 10 valid as-passed.

As scheduled, the state Supreme Court heard arguments today on the petition for them to vacate Judge Sumi's temporary restraining order.

Of note: the surprising (to me) decision of the Walker administration to argue that the Open Meetings law cannot void any law the Legislature chooses to pass.

Associated Press[/url]]Deputy Attorney General Kevin St. John argued Sumi had no authority to insert herself in the legislative process and block a law from taking effect. He accused her of trampling the separation of powers between the judiciary and Legislature and said every moment her order stands causes the state irreparable harm.

The open meetings law can't be used to invalidate another statute, he said, arguing a law is only void if it violates the state Constitution.

As a reminder:

Open Meetings Law, subsection (3) of §19.97 wrote:

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.

So they're in a position where they have to argue that either passing a law isn't an action as defined by that statute, or that the state Legislature isn't a governmental body? Anybody else see an angle here I'm missing?

I have to twist my mind around a bit to come to this logic, but this is a possibility:

The only piece of legislation that will void another piece of legislation when they are in conflict is the State Constitution. The ability of the courts to determine if a piece of legislation is void is ONLY in determining whether that conflict with the State Constitution exists. Therefore the Open Meetings law, while valid on it's own, is not capable of voiding another law unless the State Constitution is amended to include it.

From a Roberts Rules of Order perspective it makes a certain amount of sense. But if you use this kind of logic you call into question the basic premise of lawmaking, IMO. I have no documentation backing up whether those individual claims are true or not... I am doubtful about both claims made in that statement.

Interesting take on their position, except it would mean that §19.97, subsection (3) would never be valid, under any circumstances.

That may end up being the argument they're ultimately trying to make, though. It at least makes more sense than either of the possibilities I posted above.

Wow, just tried reading the Wisconsin Constitution to see what powers are vested in the courts. It's EXTREMELY succinct and vague. I'm sure there are relevant rulings in the past the detail what is or isn't within the scope of the judiciary, but this is all that's mentioned in the state constitution:

Wisconsin Constitution, Article VII wrote:

Court system. SECTION 2. [As amended April 1966 and
April 1977] The judicial power of this state shall be vested in a
unified court system consisting of one supreme court, a court of
appeals, a circuit court, such trial courts of general uniform statewide jurisdiction as the legislature may create by law, and a
municipal court if authorized by the legislature under section 14.
[1963 J.R. 48, 1965 J.R. 50, vote April 1966; 1975 J.R. 13, 1977
J.R. 7, vote April 1977]

...

Circuit court: jurisdiction. SECTION 8. [As amended April
1977] Except as otherwise provided by law, the circuit court
shall have original jurisdiction in all matters civil and criminal
within this state and such appellate jurisdiction in the circuit as
the legislature may prescribe by law. The circuit court may issue
all writs necessary in aid of its jurisdiction. [1975 J.R. 13, 1977
J.R. 7, vote April 1977

Dimmerswitch wrote:

Interesting take on their position, except it would mean that §19.97, subsection (3) would never be valid, under any circumstances.

That may end up being the argument they're ultimately trying to make, though. It at least makes more sense than either of the possibilities I posted above.

They could be hamstringing themselves, though. If they tried that, wouldn't someone be able to argue that their law was similarly useless?

But that's a whole new level of brain warping.

Looks like the state GOP has decided to abandon their attempts to have 2011 Wisconsin Act 10 considered in effect as-passed.

The State Assembly has declared that they will go into an Extraordinary Session this Tuesday at 11am.

An Extraordinary Session (which must be initiated by the Legislature) is different from a Special Session (which is initiated by the Governor).

Here are some of the special features of the extraordinary session:

* 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.
* The daily calendar shall be in effect immediately upon posting on the legislative bulletin boards. A printed calendar isn’t required.
* Any point of order shall be decided within one hour.
* There can be no motions to postpone action to a day or time certain.
* Any motion to advance a proposal and any motion to message a proposal to the other house may be adopted by a majority of those present and voting.
* The session can be expanded to include any other legislation, including new legislation.

It is widely expected that the State Assembly will take action on the budget, including adding the provisions of 2011 Wisconsin Act 10 as an amendment.

Interesting that the original position of our state GOP was that those provisions were entirely non-fiscal (a change they made in order to be able to pass the bill without the dissenting Democrats), but now they're totally appropriate to include as a budgetary measure.

That list sounds scary as hell... do all WI Congresspeople need to have sleeping quarters within 20 min walking distance? Couldn't someone just come by at a random time and call a vote? This sounds like the sort of thing you do while under siege or immanent threat of attack or something.

So when does the Republican Party of WI announce that it is suspending elections to preserve order?

Jolly Bill wrote:

That list sounds scary as hell... do all WI Congresspeople need to have sleeping quarters within 20 min walking distance? Couldn't someone just come by at a random time and call a vote? This sounds like the sort of thing you do while under siege or immanent threat of attack or something.

I believe that "posting on the legislation bullet board" still requires the full 24 hours notice.

Yonder wrote:
Jolly Bill wrote:

That list sounds scary as hell... do all WI Congresspeople need to have sleeping quarters within 20 min walking distance? Couldn't someone just come by at a random time and call a vote? This sounds like the sort of thing you do while under siege or immanent threat of attack or something.

I believe that "posting on the legislation bullet board" still requires the full 24 hours notice.

I don't believe that's the case. The rules for Special and Extraordinary sessions (warning, PDF link) are the same regarding notice, and that's precisely the loophole they were expected to use for the less-than-two-hour notice on the initial passage. Of course, they couldn't use that for the initial passage, since Governor Walker's proclamation didn't mention unions or collective bargaining. There doesn't seem to be any similar hurdle with the Extraordinary session.

Calling an Extraordinary session in the absence of Extraordinary causes seems terrible to me. I can understand budgetary issues potentially causing something like that, but only at the point where a government shutdown is immanent or something.

Local Reporter Clay Barbour, on Twitter[/url]]Senate Republicans said Extraordinary Session will be used to pass budget, which gives them greater freedom to fight Dem. challenges.

At least they're being honest about their motives.

Their slight numerical advantage isn't letting them pass absolutely everything exactly they want without consideration or negotiation with the minority party or public opinion? What a travesty!

Confirmation that the anti-labor provisions from 2011 Wisconsin Act 10 are on the agenda.

Assembly Republicans plan to add Gov. Scott Walker's limits on collective bargaining for most public workers to the state budget Tuesday if the Wisconsin Supreme Court hasn't acted by then.

"If need be, we are going to have to pass collective bargaining again because it is such an integral part of not having those services slashed and those people laid of," Assembly Speaker Jeff Fitzgerald, R-Horicon, said of the provisions, which are currently held up in court.

Fitzgerald said he expects the state Assembly to take up the two-year budget plan in an extraordinary session, and would add collective bargaining limits as an amendment if the Supreme Court fails to act on the plan by Tuesday afternoon.

Dimmerswitch, back in March[/url]]It's like their political playbook is cribbed (poorly) from watching the World Series of Poker.

"All in."

"Sir, I haven't dealt the c-"

"All in."

I wouldn't simplify it quite that way. They seem to be pretty confident about their odds and how in touch they are with their base. They may not realize how many people oppose them, or they may think they know the only way to fix their problems regardless of what the public thinks, but they are just taking the most efficient (one might say mercenary) route possible.

The Wisconsin Supreme Court today overturned Judge Sumi's ruling entirely, by the lovely expedient of ignoring relevant statutes (most notably, Wisconsin §19.97).

Unreal.

Those are pretty scathing dissents.