Budget Repair Battle shifts to the State Supreme Court
As was expected by many, the ruling over the constitutional legality of the CBA restrictions in Scott Walker's Budget Repair Bill has been sent on to the State Supreme Court. A panel of appellate justices made the ruling yesterday, stating prior cases have both ruled equally in favor of the Dane County District Attorney's case against it and the State of Wisconsin Department of Justice's position favoring it. At issue is the complaint filed by Dane County District Attorney Ismael Ozanne that the Special Conference Committee called to convene to pass the bill on the evening of March 9 violated the State's Open Meetings Law by now allowing sufficient public notice and by restricting public's access to the Capitol to attend the meeting. Dane County Circuit Judge Maryann Sumi issued an injunction on March 18, barring the Budget Repair Bill that had been signed by the Governor on March 11, from being allowed to take effect, citing that Ozanne's complaint had merit and the law needed to be reviewed before being put in place. Wisconsin Attorney General, J.B. Van Hollen, had filed the appeal with the 4th District Appellate court in Madison on Monday to lift injunction saying that Judge Sumi had ruled on the conduct of a separate branch of government.
The appeal was conducted before the judges Paul Lundsten, Paul Higginbothum, and Brian Blanchard. In theruling, the 3-judge panel cited four cases, two that ruled in favor of the judicial branch voiding or interfering with an application of the legislature's violation of it's own procedures and two that ruled that the legislature was not subject to oversight or rulings by the judicial branch. Because the Appellate Justices didn't lift the injunction, it is in effect until it is lifted by another court and, therefore; Secretary of State Doug LaFollette did not publish it today, when it had been originally scheduled to be put into effect. At the heart of the matter is essentially State Constitution Article IV, Section 10 that makes up the backbone of the legislature's Open Meetings Law:
The doors of each house shall remain open, except when the public welfare requires secrecy, it is declared to be the intent of the legislature to comply to the fullest extent with [the open meetings provisions set forth in] this subchapter.
The four cases revolve around the premise as to whether or not certain operations of the Legislature, including procedural rules like the State Open Meetings Law, are subject to the constitutional provision before legislation is published into law. They are:
Goodland v. Zimmerman (1943), Lynch v. Conta (1976); State ex rel. La Follette v. Stitt (1983) and Milwaukee Journal Sentinel v. Wisconsin Dept. of Admin., 2009.
In summation the appellate panel said,"Goodland and Stitt appear to favor the Secretary of State’s (La Follette's1983) position that courts lack authority to invalidate legislation enacted in violation of the Open Meetings Law or, at the least, to do so before publication. In contrast, Lynch and Milwaukee Journal Sentinel support the District Attorney’s (Ozanne in 2011) view."
"It is appropriate to certify to the Supreme Court appeals raising issues which that court might otherwise ultimately consider on a petition for review, in order to reduce the burden and expense of the appellate process on both the parties and the judicial system," said the panel in final summation."
Judge Sumi has scheduled hearings on the injunction on Tuesday March 29 and Friday April 1 but until any ruling is made to the contrary of the original injunction, the Budget Repair Law is on hold and as of this time it is not very clear when the Supreme Court will take up the case.
"I don't know how the court's going to react to that" case, Justice David Prosser toldJournal Sentinel editors and writersThursday. Prosser, for his part, has to weigh the consequences of involving himself in a fight that may make him look to some on both sides as if he has a conflict of interest.
"I know it would not be proper for me to react to that,"he said."To delay the case (past the election) because it might be embarrassing to me politically."
He could also be criticized for taking the case and looking like a Walker backer but he isn't backing down.
"This is my business,"he told the Sentinel. "I'm a judge. I hear cases."
Janine Geske, a Marquette law professor and former state Supreme Court justice, told the Sentinel that the high court may not want to address the case at this stage because it is ongoing and another legal challenge to the collective bargaining law has been filed.
"The likelihood that anything is going to be decided before the election is not very great,"she said.