The Wisconsin Supreme Court has vacated the order of Circuit Court Judge Maryann Sumi, enjoining publication of the collective bargaining bill.
In an unauthored opinion, the court affirmed that Goodland v. Zimmerman, 243 Wis. 459, 10 N.W.2d
180 (1943), remains valid law in Wisconsin, notwithstanding the enactment of the Open Meetings Law
and its application to the legislature.
In Goodland, the Supreme Court held, “If a court can intervene and prohibit the publication of an act,
the court determines what shall be law and not the legislature. If the court does that, it does not in
terms legislate but it invades the constitutional power of the legislature to declare what shall
become law. This [a court] may not do.”
Defenders of Sumi’s injunction argued that Goodland was superseded by the Open Meetings Law.
The court further held that there was no Open Meetings Law violation. Article IV, Section 10 of the
Wisconsin Constitution provides in relevant part: “The doors of each house shall be kept open except
when the public welfare shall require secrecy.”
The court found that the doors of the senate and assembly were kept open to the press and members of
the public during the enactment of the Act.
The court concluded, “The doors of the senate parlor, where the joint committee on conference met,
were open to the press and members of the public. WisconsinEye broadcast the proceedings live.
Access was not denied. There is no constitutional requirement that the legislature provide access to
as many members of the public as wish to attend meetings of the legislature or meetings of legislative
The court further held that the Open Meetings Law is not constitutional law. Against precedent that
an act of the legislature may only be invalidated if it violates the Constitution, the defenders of the
injunction argued that the law was a codification of the Constitution.
The court disagreed, finding that only provisions adopted as amendments are constitutional law.
The court concluded, “The court’s decision on the matter now presented is grounded in separation of
powers principles. It is not affected by the wisdom or lack thereof evidenced in the Act. Choices about
what laws represent wise public policy for the State of Wisconsin are not within the constitutional
purview of the courts. The court’s task in the action for original jurisdiction that we have granted is
limited to determining whether the legislature employed a constitutionally violative process in the
enactment of the Act. We conclude that the legislature did not violate the Wisconsin Constitution by the
process it used.”
Justice David Prosser wrote a separate concurrence, to explain why the court took the case, rather than
allowing the case to wind through the courts through the normal process of a final order and appeal.
“Simply stated, no matter how long we waited to consider a perfect appeal, the legal issues before the
court would not change,” Prosser wrote. “Whether the case is decided now or months from now at the
height of the fall colors, the court would be required to answer the same difficult questions. Delaying
the inevitable would be an abdication of judicial responsibility; it would not advance the public interest.”
Chief Justice Shirley Abrahamson also wrote separately, concurring in part, and dissenting in part, joined
by Justices N. Patrick Crooks and Ann Walsh Bradley.
The dissent did not decide the various legal issues the lead opinion did, one way or the other, but
objected to the court’s deciding the case based on facts not in the record, and argued that the case
should be resolved through the regular appellate process.
Abrahamson wrote, “If findings of fact are required in the exercise of our original jurisdiction, there are
procedures for getting those facts. Instead of adhering to those procedures, the four justices set forth
their own version of facts without evidence. They should not engage in this disinformation.”
Crooks also wrote an opinion concurring in part and dissenting in part, joined by Chief Justice
Abrahamson and Justice Bradley.
Crooks wrote, “There is no question that these issues are worthy of this court’s review. But procedures
matter — to the courts, the legislature, and the people of Wisconsin. There is a right way to address
these issues and a wrong way. The majority chooses the wrong way by refusing to take this case through
the appropriate procedural mechanism, and by rushing to issue an order without sufficient examination
or a complete record.”
David Ziemer can be reached at [email protected].