Today’s editorial opinion in the Wisconsin State Journal endorsed Dane County Judge Maryann Sumi’s decision to issue a temporary restraining order prohibiting official publication of recently passed legislation limiting collective bargaining for most public employees, a prerequisite to the law going into effect. The editorial approvingly quoted Judge Sumi as stating, “The failure to provide timely notice before a meeting … It’s not a minor detail.” It’s hard to imagine another judicial statement so short containing so much that is misleading or blatantly untrue. The editorial gave lip service to following “the letter of the law” but clearly prefers its own policy choices referred as the “spirit of the law.” There’s something more important at stake here, the Rule of Law. Judge Sumi and those who support her ruling are completely disregarding this bedrock principle of our society.
I propose taking a look at the letter of the law and what the Rule of Law requires. Maybe that will help our “Progressive” neighbors understand the true meaning and “spirit” of Wisconsin’s Open Meeting law.
Judge Sumi’s interpretation of the Open Meetings Law, if it were correct, would be blatantly unconstitutional. Article IV, section 8 of the Wisconsin Constitution gives the State Senate, and Assembly, the power to govern their own proceedings. It states:
Rules; contempts; expulsion. SECTION 8. Each house may determine the rules of its own proceedings, punish for contempt and disorderly behavior, and with the concurrence of two−thirds of all the members elected, expel a member; but no member shall be expelled a second time for the same cause.
The underlined first clause is the operative one. “Each house may determine the rules of its own proceedings …” Put another way; the Senate determines the rules that govern Senate proceedings. That would be the current Senate, not a past Senate. The only rules that matter in determining whether notice is required, much less what kind of notice or how far in advance that notice must be given, are the current Senate Rules. Statutes don’t trump the Constitution!
Any chairperson who determines to hold a hearing shall schedule the hearing as early in the session as practicable. The day, hour, and place of hearing before any committee shall be posted on the bulletin board of each house, and such notice shall state the number, author, and relating clause of the bill or resolution to be considered.
What is the time requirement for notice of a meeting? There isn’t one. What about Judge Sumi’s 24 hour notice requirement? It’s not there. It simply doesn’t exist. What about the supposed two-hour notice requirement minority Senators and Assemblymen have complained was violated? It’s not there either, and they know it–maybe that’s why they’re not the ones suing under the Open Meetings Law. Moreover, contrary to a lot of the “reporting” on the question, the meeting notice was posted on the bulletin board two hours before the meeting started, as is customary, but not required, practice. The time that a courtesy email was sent, which was relied on in the aforementioned reporting, is not the relevant time period.
But what about the Open Meeting Law’s requirement of 24 hour notice? Okay. We’ll take a trip down Fantasy Lane with the union Looney Goons and pretend that Article IV, section 8 doesn’t exist. We’ll take a look at some of the other provisions of the Open Meeting Law and find out why it still wasn’t violated? Section 19.87(2) states:
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.
There is no reasonable doubt that the collective bargaining reform law was passed in a hearing that complied with the Rules of the Senate. Thus, by its very own terms, none of the provisions of the Open Meetings Law that Judge Sumi and the plaintiffs in that case want to rely on apply. As discussed above, there’s a very good reason for that. The legislators who passed the Open Meetings Law knew that it would often conflict with their own governing rules and that they didn’t have the constitutional authority to bind the hands of their eventual successors with procedural rules that conflicted with those bodies’ rules. They didn’t want to pass an unconstitutional law, and they didn’t.
But hey, we’ve already walked down Fantasy Lane, so why not take a left turn onto Delusional Boulevard. We’ll pretend that 24 hour notice was required. If you accept that false premise, it naturally follows that the Open Meetings Law was violated. Now that we have a “violation” of the law, what is the penalty for the “violators” and the remedy for the “violated”? Section 19.96 defines the penalty applicable when a governmental body violates the Open Meetings Law. It states:
Penalty. Any member of a governmental body who knowingly attends a meeting of such body held in violation of this subchapter, or who, in his or her official capacity, otherwise violates this subchapter by some act or omission shall forfeit without reimbursement not less than $25 nor more than $300 for each such violation. No member of a governmental body is liable under this subchapter on account of his or her attendance at a meeting held in violation of this subchapter if he or she makes or votes in favor of a motion to prevent the violation from occurring, or if, before the violation occurs, his or her votes on all relevant motions were inconsistent with all those circumstances which cause the violation.
Obviously, this means that a judge can block enactment of a law passed in said meeting. It says so right … what was that? It’s not in there? Let’s look again. It says that the people who participated in the meeting in their official capacities are subject to a fine “not less than $25 nor more than $300 for each such violation.”
But what about an “illegally” passed law? There is nothing in the letter or spirit of the Open Meetings Law that voids that law. Why, you may ask? The fact that a law was passed by a legislature, or some other matter resolved by any governmental body at any level, violated the Open Meetings Law does not in of itself mean change the fact that the legislature met, voted, and passed a law. Even if all of the [inapplicable] provisions of the Open Meetings Law had been followed, the outcome would have been the same. That’s just as true of the Senate voting to pass a bill as it is of a School Board approving a generous union contract. There’s simply no legal basis for attempting to void the law, whether by declaring it void or issuing a restraining order against its publication. We could go on to discuss the court’s lack of authority to block an act required by the Constitution, but we’ve already done more than enough to overload the minds of the Regressives and Looney Goons.
Finally, there has been a lot of speculation as to why Judge Sumi issued her ruling right before getting out of Dodge City on her vacation. I will simply say that I don’t know why. Speculation has focused on her personal political and social beliefs, her electoral prospects, her son’s union employment, and the possibility of the union’s Looney Goon mob occupying the courthouse like they did the Capitol and treating her like they did Senate Republicans and Governor Walker (e.g., harassment at work and home, death threats, etc.). It could have been any one or more of these or other reasons. She may simply have disregarded or not bothered to read the law. What I do know is this. Judge Sumi’s ruling wasn’t based on the law. It doesn’t follow the Rule of Law. Editorial boards may acclaim and mobs may combine, but a civil society bows to neither. The Rule of Law should overcome them both. So far it hasn’t. Whether it will in the end remains to be seen.
A three-judge panel of the District IV Wisconsin Court of Appeals declined to rule on Judge Sumi’s order and instead attempted to punt the matter up to the Supreme Court by certifying two questions. The Supreme Court is not required to take the case. In its nine page ruling, the Court of Appeals cited to four Supreme Court opinions in an attempt to construct a conflict in the case-law for the Supreme Court to rule.
In Goodland v. Zimmerman, as quoted by the Court of Appeals, the Wisconsin Supreme Court stated “If a court can intervene and prohibit the publication of an act … it invades the constitutional power of the legislature to declare what shall become law.” This is a very clear and concise statement that Judge Sumi went far beyond the Constitutional bounds of her authority.
In an attempt to create a facade of legal authority for Judge Sumi’s lawless order, the Court of Appeals cited Lynch v. Conta, for the proposition that the courts have legal authority to enjoin legislative acts. In Lynch, a declaratory judgment action asked the Court to decide whether meetings attended by member of the Joint Finance Committee was a meeting within the meaning of the Open Meetings Law. The Court allowed the declaratory judgment action to proceed, but nothing in the opinion contradicts the Goodman rule against enjoining publication of a law. In fact, the Lynch opinion repeated the general rule that “mere violations of parliamentary procedure are no grounds for voiding legislation.” The Lynch Court merely ruled that the Open Meeting Law applied to the legislature and could be enforced through a declaratory judgment action. Contrary to the Court of Appeals assertion, nothing in Lynch supports the proposition that a court may enjoin the publication of a law in order to effectively void that law.
The Court of Appeals then moved on to a discussion of State ex rel. La Follette v. Stitt. In Stitt, the question was whether a law could be voided based on an alleged violation of legislative procedure requiring the law to have been referred to a committee prior to passage by the full legislative body. The Supreme Court ruled that a violation of legislative rules by the legislative body was an ad hoc modification of those rules. Absent a violation of a constitutionally mandated requirement, the law was not voidable. The Court of Appeals attempts to create the possibility that the Open Meetings Law is somehow constitutionally mandated on the thin reasoning that the Supreme Court did not rule otherwise. However, the idea that requirements created by statute are constitutional is patently absurd. If the particular rule or requirement is not found in the language of the Constitution, it is not constitutionally mandated. The 24-hour rule cited by Judge Sumi is purely statutory. It is not based on anything in the Constitution. Moreover, the constitutional requirement that legislative sessions be open was not violated. It does not require the Legislature to violate the laws of physics by admitting more people in to its chambers than they have the capacity to hold. It certainly does not grant anyone the right to attempt to disrupt and prevent sessions from occurring or functioning. Thus, it was within the power of the Legislature to remove disorderly protestors.
The Court of Appeals concluded its “analysis” by referring to Milwaukee Journal Sentinel v. Wis. Dept. of Administration, a case addressing an alleged violation of the Public Records Law. The challenged action was ratification of a union contract. The Milwaukee Journal Sentinel Court was asked to decide whether the action was reviewable, which was not the question before the Court of Appeals. The ratification was a completed action and access to information deemed confidential in the collective bargaining agreement was sought. It is simply inapplicable to the question of whether publication of a law by the Secretary of State, the last step in the process for enactment of a new law, may be enjoined. Lynch and Goodman stand for the proposition that laws are not reviewable until after they are enacted and nothing in Milwaukee Journal Sentinel or anything else cited by the Court of Appeals restricts or limits that rule in any material way.