Legal issues surround collective bargaining case

By: David Ziemer, [email protected]//June 7, 2011//

Listen to this article

Attorney Roger Sage, who represents Wisconsin Secretary of State Douglas LaFollette, addresses justices of the Wisconsin Supreme Court in Madison on Monday. The court was considering oral arguments regarding whether to exercise jurisdiction over matters relating to the passage of 2011 Wis. Act 10, commonly referred to as the budget repair bill. (AP Photo/Wisconsin State Journal, John Hart, Pool)

Many legal issues were discussed during the Wisconsin Supreme Court’s 5-hour-plus oral argument Monday. At issue is Dane County Circuit Court Judge Maryann Sumi’s enjoining the collective bargaining law from taking effect.

But the justices repeatedly returned the focus of the argument to one issue: Was there a constitutional violation in how the law was enacted?

In general, a procedural violation is not sufficient grounds for a court to invalidate a law; only a constitutional violation will suffice.

Accordingly, Deputy Attorney General Kevin St. John argued that, even if legislature violated the open meetings law in passing the legislation, a court still has no power to enjoin its publication. St. John argued that the open meetings law would have to be enacted via a constitutional amendment to provide a basis for the injunction.

Defenders of the injunction, in contrast, contend that the open meetings law embodies Art. IV, sec. 10 of the Wisconsin Constitution, and thus, a violation of the statute is a violation of the Constitution.

Frequently surfacing during the arguments was whether there actually were any violations of the law.

Sumi found two violations with how the law was passed. First, the bill was approved in committee on less than two-hours’ notice, while the law requires 24 hours. Second, there was insufficient access to hearing room.

But some of the justices were skeptical that there were any violations in the first place, much less whether the violations raise constitutional concerns.

Although the legislature bound itself to the 24-hour notice requirement in sec. 19.84(3), it also provided, in sec. 19.87(2) that “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.”

Both the Senate and the Assembly have rules that require no notice at all for a committee meeting. However, there is no comparable joint rule.

Dane County District Attorney Ismael Ozanne, who brought the case, defended Sumi’s holding that, in the absence of a joint rule, there must be 24-hours’ notice.

But Justice David Prosser took issue with the contention, suggesting that joint rules are adopted only when there is a conflict between Senate and Assembly rules; thus, because Senate and Assembly rules are identical, a joint rule would be superfluous.

Whether there was an access violation was also disputed. Both Ozanne and Sumi’s attorney, Marie Stanton, defended Sumi’s holding on this issue — that allowing access only to the media and 20 other persons, failed to comply with sec. 19.81(3)’s mandate that “the doors of each house shall remain open, except when the public welfare requires secrecy …”

Ozanne contended that, in light of the interest in the law, the admission of the media and only 20 other persons was unreasonable access.

During St. John’s argument, Justice Ann Walsh Bradley repeatedly emphasized Sumi’s finding of fact that the doors to the hearing room were locked. “How can locked doors be ‘open’?” Bradley asked more than once.

But during Ozanne’s argument, the justices questioned whether the factual finding had any support in the record. In light of the media presence and 20 other observers, Justice Annette Kingsland Ziegler suggested that the doors weren’t locked, but that the room was merely “full.”

Stanton and Ozanne acknowledged that the proceedings were not secret, but contended the access to the public was unreasonably small in light of the public interest in the law. That prompted Justice Michael Gableman to ask what standard courts could fashion in deciding how much access is enough.

Also debated was whether courts are permitted to question the legislature’s interpretations of its own rules.

Justice Roggensack on several occasions cited the holding in State ex rel. La Follette v Stitt, 114 Wis.2d 358, 338 N.W.2d 684 (1983), that even if the legislature fails to follow self-adopted procedural rules in enacting legislation, if such rules are not mandated by the constitution, courts will not intervene to declare the legislation invalid.

Also looming large in the case is the Supreme Court opinion in Goodland v. Zimmerman, 243 Wis. 459, 10 N.W.2d 180 (1943), holding that a court may not enjoin publication of a duly enacted law.

Stanton argued that the cases were not dispositive, because, in enacting the open meetings law, the legislature consented to suit.

Stanton raised a necessity argument, asking, “The legislature could have excepted itself from the open meetings law; it bound itself. If a court can’t enjoin a statute, how is the legislative promise to abide by the law to be enforced?”

Procedural questions abounded as well. The initial request for a supervisory writ from the Supreme Court was made from a temporary injunction, but since then, Sumi made the order final.

Lester Pines, representing Democratic Sen. Mark Miller, said there was no exigency in this case justifying the Supreme Court issuing a supervisory writ. Instead, Pines said that the proper procedural route is appeal from the recently issued final order. “There is no rush; there is no harm to the public. The governor can intervene and appeal,” he said.

Despite the numerous issues swirling in the case, the Supreme Court’s ruling, if it does grant the supervisory writ, could be a narrow one.

The final question Chief Justice Abrahamson asked of St. John is whether the case could be decided on a narrow holding that a circuit court cannot invalidate a law based on a statute rather than the constitution.

St. John said that was the issue, and maintained that courts lack that authority.

Select Region or Brand

Upcoming Event