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Open meetings challenge faces long odds (UPDATE)

Wisconsin Sens. Luther Olsen (right), R-Ripon; Shelia Harsdorf (left), R-River Falls; and Terry Moulton, R-Chippewa Falls, leave the Senate chambers Wednesday after Republicans in the Senate voted to strip nearly all collective bargaining rights from public workers. (AP Photo/Andy Manis)

Wisconsin Sens. Luther Olsen (right), R-Ripon; Shelia Harsdorf, R-River Falls; and Terry Moulton, R-Chippewa Falls, leave the Senate chambers Wednesday after Republicans in the Senate voted to strip nearly all collective bargaining rights from public workers. (AP Photo/Andy Manis)

Challenging the legality of Wednesday’s hastily convened state legislative committee meeting on collective bargaining could do little more than stall the bill’s approval, according to members of the legal community.

The Joint Committee of Conference met at 6 p.m. Wednesday and removed spending measures from the legislation, which would eliminate most collective bargaining rights for public workers. Senate Republicans than approved the bill. The state Assembly passed the bill Thursday.

Notice of the committee meeting went up at 4:10 p.m. Wednesday, according to a release attributed to Senate Chief Clerk Bob Marchant.

Some, such as attorney Robert Dreps of Godfrey and Kahn SC, Milwaukee, said the meeting violated state open meeting laws. State law requires at least 24-hour notice of every government meeting unless there is a “good cause,” in which case shorter notice may be given, but not less than two hours.

Defenders of the meeting’s legality cite a Senate rule that states “no advance notice is required other than posting on the legislative bulletin board,” according to the release from Marchant. Notification of the meeting, according to the release, was e-mailed to all legislative offices as a courtesy, but the notice appears to have satisfied any legal requirements.

Two complaints have been filed to challenge the legality of the meeting. Assembly Minority Leader Peter Barca, D-Kenosha, filed an open meetings complaint Thursday with the Dane County District Attorney’s Office, and Madison Mayor Dave Cieslewicz filed a similar complaint Thursday through the Madison City Attorney’s Office.

Cieslewicz’s complaint was filed with the Wisconsin Attorney General’s office, and additional complaints were also filed Thursday by Dane County Executive Kathleen Falk and the American Federation of State, County, and Municipal Employees.

“I think they are grasping at straws,” said James Lindgren, a Northwestern University Law School professor who has been following the challenges. “I think the legality of the committee notice turns on whether it followed the rule and the literal reading would say yes.”

Dreps argued the Senate did not adhere to public notice timelines and did not offer a legitimate reason for the rapidly assembled meeting in advance of the Senate vote.

But even if the legal challenge succeeds, said Dan Thompson, attorney and executive director of the League of Wisconsin Municipalities, the response is simple.

“The remedy is: If it’s a violation, the action taken is null and void,” he said, “but they could simply go back and do it again.”

Whatever happens with the challenges, Dreps said, the issue does not help others in the state who have to adhere to the open meetings laws.

“As a matter of policy,” he said, “this sets a horrible precedent because it shows the Legislature makes rules that apply to everyone but themselves.”


  1. Does a senate rule trump a state statute? I genuinely don’t know.

  2. A senate rule trumps the state statute when the state statute expressly states that the senate rule can trump the state statute. It’s a poorly drafted statute.

  3. Section 19.87(2) provides, “No provision of this subchapter which conflicts with a rule of the senate or assembly or joint rule of the legislature shall apply to ameeting conducted in compliance with such rule.”

  4. Even if the challenge to the collective-bargaining law on open-meetings grounds fails, the law will likely face other legal challenges.

    For one thing, state senators fell one vote shy of the 20 required for the body to conduct business under the Wisconsin state Constitution. With only 19 Republicans in the state Senate, supporters had to win the support of at least one Democrat to pass the measure — and all of the Senate’s 14 Democrats were out of state, denying the Republicans a quorum. The bill’s passage, therefore, was unconstitutional.

    Second, an unintended consequence of the U.S. Supreme Court’s controversial “Citizens United” decision that effectively granted corporations and unions full citizenship rights to spend unlimited amounts of money on political campaigns could be that public-sector unions are now entitled under the Equal Protection Clause of the Fourteenth Amendment to the same right to collective bargaining that private-sector unions have under FEDERAL labor law — specifically, the National Labor Relations Act.

    Furthermore, the newly-passed bill violates public-sector union members’ First Amendment right to freedom of association by essentially revoking state recognition of their unions.

    It remains to be seen how far these legal challenges will go, but I would not be surprised if the Wisconsin law ultimately ends up in the U.S. Supreme Court.

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