A Wisconsin Circuit Court judge has struck down the state’s controversial government union reform bill, saying the way the legislation was passed violated Wisconsin’s open meetings statute. The decision raised some eyebrows in the legal community, as did the timing of Judge Maryann Sumi’s decision. But the permanent injunction issued by the judge is hardly the end of the matter. The Wisconsin Supreme Court will hold a hearing on whether to take the case on June 6, and Sumi herself ruled in her original temporary restraining order on the bill that Republicans were free to pass the measure again as long as the state’s open meeting requirements were met. Both prospects, however, pose serious difficulties.
Judge Sumi, appointed by former Republican Governor Tommy Thompson, badly botched the decision according to some legal experts. Christian Schneider at National Review Online and others point to a glaring error made by Sumi, who wrote in her decision that the there was “no conflicting senate” rule that would contradict the open meeting law’s time requirements (24 hours notice for a legislative conference committee, from which a bill can then be brought to the floor).
But as law professor William Jacobson points out on his blog, there is indeed such a rule and that it specifically exempts committee meetings held during special sessions.
That’s not the only curious thinking in Judge Sumi’s opinion. Jacobson points to a critical precedent that says “courts must await a law coming into effect before ruling on the law, Goodland v. Zimmerman.” Sumi dismissed the impact of the precedent by claiming that it was decided before the open meeting law was passed. But Jacobson pointed out the obvious: “[T]he principle is the same; courts rule on legislation, courts do not stop legislation from being made.”
Some court watchers were surprised at the timing of Judge Sumi’s decision. Rick Esenberg, a Marquette University law professor who has tracked the court’s activities, told JS Online that he was not surprised at Sumi’s ruling, but was surprised that she handed down the decision now. “She had clearly indicated that was her view,” he said.”[Y]ou had the sense that she had established that she wasn’t going to rule this early, but apparently she decided she needed to do it.”
What might have compelled Sumi to issue the ruling now? Christian Schneider at NRO reports that the state’s Department of Justice wrote a letter to the judge on Wednesday asking her to recuse herself from the case because of a brief she had filed with the supreme court last week. The state DOJ objected to Sumi’s pronouncement that legislation can be thrown out due to violations of the open meeting law. The department argued that a judge should recuse his or herself from a case when a public comment has been made that “commits, or appears to commit” the judge to any issue or controversy in the case before him or her. So, to head off trouble with the Wisconsin Department of Justice, Sumi rushed her decision into print.
The issue of her recusal doesn’t matter now. But it underscores the slipshod manner in which Judge Sumi has handled this case from the beginning. Her original temporary injunction did not include a stricture against the Wisconsin Secretary of State scheduling the publication of the law – an oversight that allowed the Republican majority to ignore her original restraining order. On March 29, Sumi was forced to issue an additional injunction, enjoining the Secretary of State from officially designating a date for publication. But Bill Cosh, a spokesman for the Department of Justice, said at the time, “We don’t believe that the court can enjoin non-parties. Whether the Department of Administration or other state officers choose to comply with any direction issued by Judge Sumi is up to them.”
Hopes for a more judicious ruling in the state’s supreme court are uncertain. The election of conservative David Prosser to the supreme court that was finally certified earlier this week doesn’t necessarily mean that the court’s Republican majority will rule in favor of lifting the injunction. Because the issue before the court is a narrow one, involving the interaction of the legislation with the open meetings statute, there may be technical reasons why the injunction will be made permanent. The state Court of Appeals, in refusing to rule on the injunction, wrote this in their opinion:
If the Open Meeting Law is not viewed as protecting a constitutional right, then it would appear, under Stitt [Stitt and Milwaukee Journal Sentinel v. Wisconsin Dept. of Admin., that a court would have no authority to void an act based upon an alleged violation. If, however the legislature’s compliance with the Open Meeting’s Law is subject to judicial review in order to protect the underlying constitutional interests involved, the additional question arises whether such review may occur while the legislative process is still pending[.]
The supreme court might decide to narrow their opinion which might uphold the injunction but allow the legislature to go ahead and pass the law again.
But this means that all of the legal maneuvering could be made moot by recall elections involving three Republican senators set for July 12. With the current split between Republicans and Democrats in the senate at 19-14, a sweep of those contests by Democrats would hand control of the senate to them. This would afford them the opportunity to repeal the legislation outright. There are six other recall petitions – three Republican and three Democratic – before the state’s Government Accountability Board (GAB) awaiting a decision on whether to proceed with new elections later this summer.
Senators Dan Kapanke of LaCrosse, Randy Hopper of Fond du Lac, and Luther Olsen of Ripon will face the voters in these unprecedented special elections. Only four times since the state constitution was amended in 1926 have recall petitions been accepted and elections scheduled, and never more than one at a time. Efforts by Wisconsin unions and national activists drove the petition effort. Republicans argued that the groups gathering the petitions filed improper paperwork, but the GAB rejected that argument. This means that the three additional Republican senators who are at risk will probably face a special election as well.
The state GOP is undecided whether to file suit to block the elections, but observers think they don’t have much chance to stop them, given that the accountability board has rejected their main argument. This means that if the Democrats sweep all three contests, they will hold a one vote majority in the senate, 17-16.
One encouraging bit of news is that anyone can run for the seat as long as they gather 800 signatures. The incumbents are on the ballot automatically. If, as expected, several Democrats file to run in each race, the July 12 election will serve as a primary with a runoff election held 4 weeks later.
The people of Wisconsin are tired of the controversy. Governor Walker’s approval numbers have been sliding and a March poll found 52% oppose weakening the collective bargaining rights of state unions. How this translates into an advantage for one side or the other in the recall elections remains to be seen. The elections, as always, will turn on how voters view the individual candidate. Democrats will attack the incumbents for supporting what they will call a “union busting” bill. The GOP will counter by reminding voters that the Democrats turned tail and ran to Illinois to avoid voting on the budget repair bill.
The side that can successfully portray the other as the villain will probably come out on top.