March 18, 2011

County-level judge issues order restraining Wisconsin's new law limiting collective bargaining for public employees.

The judge, Maryann Sumi, was responding to the Dane County District Attorney Ismael Ozanne (a Democrat), who contended that the legislative committee violated the open meetings law.
"It seems to me the public policy behind effective enforcement of the open meeting law is so strong that it does outweigh the interest, at least at this time, which may exist in favor of sustaining the validity of the (law)," she said....
Asst. Atty. Gen Steven Means said: 1. the state can appeal, and 2. the legislature can simply re-enact the legislation, avoiding the procedural problem the judge found.
Means said the state expected Sumi's decision. He said the state had a chance to substitute judges, but decided not to do so.
What exactly does that mean? It's a slight to Sumi, but why?

163 comments:

kent said...

the legislature can simply re-enact the legislation, avoiding the procedural problem the judge found.

Outstanding.

PaulV said...

Pass the bill again. Any delay is useful to the opponents of the affoable reform budget bill. Also takes away any procedural appeal to WI Supreme Court.

Scott M said...

2. the legislature can simply re-enact the legislation, avoiding the procedural problem the judge found.

And the Fleebagger 14 are home now, aren't they? IF, big IF, this was the strategic calculation, given that AA thinks the state expected this decision from the outset, it smacks of political genius.

Tyrone Slothrop said...

Does it not seem she's already decided this?

Issob Morocco said...

Leftists will lose on both counts. It did not violate the law as written. And now that the 14 are back in paradise lost, they will be able to pass it again.

Makes one want to vote for Prosser if one lives in Wisconsin.

Rich B said...

Meade -

Get your camera back down to the Capitol. I'll be the drama will be restarting soon.

Jill said...

I find it interesting that the judge who said she would not rush a decision before she went on a week long vacation issued this temporary restraining order 30 min after opening arguments. Really?

Tyrone Slothrop said...

That is, while the restraining order is temporary pending her final decision, is it ethical for her to telegraph what her final decision will be?

Lincolntf said...

Are we talking about hours/days/weeks or what before the State can get around the Judge's ruling? Every step of the process (whichever process ends up being used) will no doubt be dogged by more mobs, threats, etc. Best to get this done quick and dirty.

Simon said...

If they try to reenact the legislation, they must succeed, because succeed or fail, the attempt itself will be (disingenuously, to be sure) cited on appeal as a concession that the original legislation was defective.

Henry said...

Maybe they wanted a judge who could write a simple declarative sentence.

"It seems to me the public policy behind effective enforcement of the open meeting law is so strong that it does outweigh the interest, at least at this time, which may exist in favor of sustaining the validity of the (law)," she said....

Isn't this a total punt? Maybe the reporter just picked a random paragraph from her decision, but this is a complete abstraction from the issues. Was a law violated or not?

All we know is that something strong outweighs something valid. Thanks, judge.

Drew said...

The longer the delay, the more backroom deals the unions can make. Wasn't that the whole point of running to Illinois in the first place?

Phil 3:14 said...

Now its a Budweiser commercial

MadisonMan said...

I don't know whether the law was broken in passing the law. I suspect it was. 60/40 odds. From a practical point of view -- and I know the law is not always practical -- it seems a silly route to take, IMO, to try to take down the law on procedural grounds that really don't matter.

I rather doubt someone is going to change their vote so they can say they were for the bill before they were against it. So why do this? (That's rhetorical, btw)

Robert said...

Drew, you hit the nail right on the head. delay delay delay the inevitable.

Lukedog said...

Issob,

Sad that you advocate voting for an openly biased judge.

Just wondering...

Does anyone posting here live in Wisconsin? or understand what collective bargaining is?

madawaskan said...

Pass the bill again.

Jeebus-once Walker signed it I thought that option was off the table.

Now this is a gift really I say take the AG option #2

Gen Steven Means said: 1. the state can appeal, and 2. the legislature can simply re-enact the legislation, avoiding the procedural problem the judge found.

Go for it!

Mary said...

Substitutions of judges are taken when one party knows that the judge can't be fair. I assume, as it is in my state, each party has one substitution as a matter of right. The state is saying that it knew that she couldn't be fair and, from the ruling, it appears that it should have taken that change.

vet66 said...

Are we to understand that Judge Sumi issues a ruling that is little more than a stalling technique then does her version of running off to Illinois/vacation? So now we have the Wisconsin 15?

Do these people have an ounce of respect for the majority of people who voted in November to address the budget? Apparently not. Nice seque from the redhead ideologue pushing for partisan judges to make law when the majority confounds the progressive plan.

paul a'barge said...

http://news.yahoo.com/nphotos/Top-Stories-Photos-Judge-Maryann-Sumi-listens-arguments-during-hearing-Friday-March-18/ss/705/im:/110318/480/urn_publicid_ap_org3a7db8f4ecaf47258c6274c4403f3e7d/

who appointed her?

what are her political donations?

former law student said...

County-level judge

This is almost like a District Court judge in Riverside, California enjoining Don't Ask, Don't Tell for our worldwide military.

Jill said...

from WisPolitics: State Sen. Jon Erpenbach said he hoped if Republicans took that route they would compromise with Dems, especially with the recall efforts now facing a number of their members.

I don’t know how many times you can tell public employees and others around the state of Wisconsin that we don’t respect you and we’re not going to pay you and we’re going to break up your union and we’re going to take your collective bargaining rights away twice, Erpenbach said.
Senator Erpenbach hopes for compromise. If smell no compromise - they will fun again.

Simon said...

Tyrone Slothrop said...
"while the restraining order is temporary pending her final decision, is it ethical for her to telegraph what her final decision will be?"

Assuming that Wisconsin's test for granting temporary injunctions tracks the federal test (see, e.g., Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008); Christian Legal Society v. Walker, 453 F.3d 853 (7th Cir. 2006)), it's hard to see how a judge can grant the motion without giving some hint about their tentative views on merits: The party must show, among other things, "that it is reasonably likely to succeed on the merits."

William said...

"It seems to me the public policy behind effective enforcement of the open meeting law is so strong that it does outweigh the interest, at least at this time, which may exist in favor of sustaining the validity of the (law)," she said....

Whenever "public policy" balancing acts start, one can be reasonably assured that the black letter law is not going to be followed.

When you have the facts you argue the law.

When you don't have the facts, you argue public policy.

When public policy arguments prevail, you have have no law.

former law student said...

From a practical point of view -- and I know the law is not always practical -- it seems a silly route to take, IMO, to try to take down the law on procedural grounds that really don't matter.

A lawyer must use every bullet in his gun.

Simon said...

former law student said...
"County-level judge[?] This is almost like a District Court judge in Riverside, California enjoining Don't Ask, Don't Tell for our worldwide military."

Or a District Court judge in Pensacola, Florida enjoining Obamacare nationwide. Of course, the Obama administration tends to ignore inconvenient rulings by district judges (see also the offshore drilling contretemps), so the Governor would be in good company if he took the same course here.

Simon said...

MadisonMan said...
"I don't know whether the law was broken in passing the law. I suspect it was. 60/40 odds."

Well, let's explore that. What is the text of the of the law you think was broken?

Jill said...

I mistyped - my statement reads: Senator Erpenbach hopes for compromise. If smell no compromise - they will fun again.

That should read: Senator Erpenbach hopes for compromise. If they smell no compromise - they will run again.

I hope no one construes my first statement as being a definitive from the senator that they will run again.

MadisonMan said...

This is almost like a District Court judge in Riverside, California enjoining Don't Ask, Don't Tell for our worldwide military.

Dane Co judges do have jurisdiction over what goes on in the Capitol building. I think that's correct.

wordsmith2 said...

Ann, it would be useful if you could weigh in on the question you pose: Why do you see this as a slight to Sumi? When I read the actual quotation of what she says, I'm not sure she feels that she can rule against the state. Her words imply, to me (and IANAL), that she could grant the TRO only because the theory of the open meetings law is valuable as a means of ensuring transparency in government--not because the law applies to the legislature in special session. It seems like yet another delaying action to permit more union contracts to be signed at the local level.

Jim Bullock said...

Why?

- Gets the procedural issue out there and resolved.

- Makes the gamesmanship obvious, again some more.

Seriously, if the meeting execution was muddled, why was that? Also, "open" meeting law? The point is notification to allow access for oppostion and minority positions. How much real-time reporting was there on the meeting? The fact that the bill was up, and was going to be voted upon is why the Fleabaggers fled in the first place.

- Allows the (Democratic party) DA to look partisan and petty.

- Allows the Judge to ditto.

This is an appeal to the middle by Walker's administration, fueled entirely by the opposition's outrage and outrageous behavior.

Independent of policies, the opposition looks petty and indifferent to rule of law - they'll try anything to get their way. That is scarey.

Letting elected officials and supposedly non-partisan judges do this makes it harder for the Democratic party to disavow later.

granmary said...

"The state had a chance to substitue judges but decided not to." Ann, what that means is that the state decided not to fight this liberal judicial activism with their own activism. Conservatives never stoop to the level of progressives. They actually believe in following the law, not making law from the bench.

madawaskan said...

Well follow Althouse's link and reading it all the way down it looks like they are going to go the "appeals route."

*****


The judge’s finding – at least for now – is a setback to Republican Gov. Scott Walker and a victory for opponents, who have spent weeks in the Capitol to protest the bill.

Asst. Atty. Gen Steven Means, who was part of the state's legal team, said after the ruling that "we disagree with it."

"And the reason they have appellate courts is because circuit court judges make errors and they have in this case."

Means said the state would "entertain an appeal."

"If the Legislature decides to go back and re-act on these provisions, they have the right to do that. And we will see what happens," he said.

Means said he had no idea what the Legislature might do.

Means said no final decision had been made on an appeal. "But that's where we are pointing at," he said.

*****

rhhardin said...

It means she's a wise Latina and what do you expect.

Simon said...

Also, while the open meetings law is a statute—and for that reason the Assembly can't be treated as having tacitly repealed the rule in contradicting it, cf. Custodian of Records v. State, 272 Wis. 2d 208, 680 N.W.2d 792 (2004)—is there any statutory requirement for legislation to be considered in committee in the first place? Or is it simply a rule, which Custodian of Records implies the Assembly can vitiate at any time? If the latter, the alleged violation of the open meetings law is moot.

Smilin' Jack said...

"It seems to me the public policy behind effective enforcement of the open meeting law is so strong that it does outweigh the interest, at least at this time, which may exist in favor of sustaining the validity of the (law)," she said...

WTF? Can a ruling be appealed on the grounds that it's unintelligible gibberish?

Comrade X said...

This protracted battle is raising awareness nationwide of public sector unions and the pension problems. I don't see how that will help the pubsec unions cause long-term. I think they were under most folks radar, though the libertarians have been talking about it for years. Thank Koch!

Jim Bullock said...

Oh yeah, another one

- Makes new friends in local governments.

Local governments will find themselves in a vice between reduced state money and fixed outlays to unions, which they can't adjust. Some will say: "Just tax more and give us more cash." Others, who have had businesses move out of state, will notice that the administration tried to give them the freedom of action to manage their own budgets.

None of this will please the gimmie, gimmie, gimmie people. They are already lost. Folks on the fence can be convinced by decorum, of all things.

The best thing for Walker & company is to win - as in enact the law, balance the budget and brow their economy - after as vicious and extended a fight as they can actually win. The partisans are already mobilized & their position won't change. The independents, moderates, and folks who want their officials to act like grown-ups will be driven to Walker & company by the opposition's antics.

Florida Gator said...

A little perspective from
 Jim Lindgren back on March 10th
.

Václav Patrik Šulik said...

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=132&topic_id=7062765&mesg_id=7067024

Carl said...

Anyone who thinks that the passage of this bill was lawful is sorely mistaken--it's going to get passed, but it needs to abide by the Open Meetings law in the city of Madison. This isn't the WI Statutes, but it's part of the city's law. It requires:

"Notice must be given 24 hours in advance of a meeting unless such notice is impossible or impracticable. That is almost never the case."

The meetings also were not open to the public. Like the judge said--they just need to re-enact it...but it has to abide by the city's laws. It's not a partisan ruling, just merely one that follows the law as it is written.

Law: http://www.cityofmadison.com/council/resource/15OpenMtg.pdf

William said...

Carl, I was not aware that Madison General Ordinances apply to the State Legislature

Is there some case law on this point?

garage mahal said...

"Oh yea? 10,000 layoff notices going out in the mail today!"

/walker

Carl said...

Honestly, I can't say for sure, but I've been operating under the impression that these are the laws that they're saying are being violated. Every reference they make talks about the meetings needing to be open, and that there be 24-hours notice of them. I looked in the statutes but didn't see explicit references to either of those specifics (maybe I was looking at the wrong statute?).

Issob Morocco said...

Lukedog opined emotionally,

"Issob,

Sad that you advocate voting for an openly biased judge.

Just wondering...

Does anyone posting here live in Wisconsin? or understand what collective bargaining is?"

Sorry to bring sadness with my opinion, but I firmly stand behind it. As to your belief that Prosser is "an openly biased" jurist, prove it. Otherwise you are not opining, but projecting your belief system as if it is fact. A tactic employed by the hard left.

Looking at Prosser I don't see your claim of bias. Unless that is because he did not agree with your beliefs. I would not support Kloppenburg at this point because if the protestors are wanting it so badly, I have to believe she is the wrong person. Not a slam on her, but those who are supporting her.

No I don't live in Wisconsin and yes I do understand Collective Bargaining. From both sides and from different government levels.

Simon said...

Carl said...
"Anyone who thinks that the passage of this bill was lawful is sorely mistaken--it's going to get passed, but it needs to abide by the Open Meetings law in the city of Madison. This isn't the WI Statutes, but it's part of the city's law."

That's not an auspicious way to start your point. The law is in the Wisconsin code, see Wis. Stat. § 19.81 et seq., and if you had bothered to read the document that you cited, you'd know that: It says so in section I. That document is simply an explanation—with no apparent independent legal force—of the application of section 19.83(3), and what that provides is this: "Public notice of every meeting of a governmental body shall be given at least 24 hours prior to the commencement of such meeting unless for good cause such notice is impossible or impractical, in which case shorter notice may be given, but in no case may the notice be provided less than 2 hours in advance of the meeting" (emphasis added). So. Perhaps you or MM would like to answer the obvious question: How was this violated? And even if it was, I think you also have to answer the point I raised above of whether it matters. Unless the Assembly was required by statute to filter the bill through committee, why is what happened in committee not moot? If the Assembly could waive the process that sends it to committee, it seems to me that any errors in that process are irrelevant to the ultimate disposition of the case even if you prevail on those points.

Carl said...

If you read the city's laws, which certainly seem to apply judging by their wording, it is almost never the case that it's "impossible or impractical." Further, they didn't even give 2 hours notice (it was about an hour and a half), even though 24-hours notice was certainly required. The meetings also weren't open to the public, as required by the law. Neither of those were followed. Hence, we can conclude the law was violated.

edutcher said...

garage couldn't wait to "bwahahaha" when he heard of the ruling.

Now the state says there are options to get around it (as I said earlier, a TRO is just that - temporary).

OK, I am positing edutcher's Law - not to be confused with Godwin's Law, Kepler's Law, or Burke's Law.

Anytime a Lefty starts crowing about a vote, finding, or decision that benefits the Left but is against the public interest, he/she will be faced with having to eat their ha's (or bwaha's, as the case may be) before they know it.

hombre said...

What exactly does that mean? It's a slight to Sumi, but why?

Presumably because she has the reputation of being liberal and a Democrat. That doesn't mean her ruling is wrong, just predictable.

A more interesting question is the participation of a district attorney in the matter. Unless the D.A. in question has civil jurisdiction, where does the statutory authority to seek a TRO barring enforcement (etc.) of a legislative act come from.

Prosecution, yes, if the open meeting law has criminal sanctions, but injunction?

I'm not interested enough to research it, so I'll just assume that since D.A. Ozanne is a Dem, as we now know, Dems don't have to follow laws they don't like.

Issob Morocco said...

Carl, don't let the facts get in the way of your beliefs, okay?

Sofa King said...

Simon, also note 19.87(2):

"(2) 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."

Lincolntf said...

This is another bit of red herring/red meat being thrown to the hysterical rioters in Madison. They have a new "illegality" to claim to be a victim of, another justification to threaten, intimidate and destroy, and the motivation to stay angry after the whole thing is settled.
The same perpetual persecution complex that animates the protesters is what keeps the Dems able to herd them so easily. Saps.

former law student said...

This protracted battle is raising awareness nationwide of public sector unions and the pension problems.

Wisconsin doesn't have a pension problem. I reject these goony arguments when used to justify kneejerk gun control when some nut shoots up a McDonald's ("Let's close the gun show loophole!" "Did the killer buy his gun at a gun show?" "Well,no, but why does that matter?") just as I reject it here.

Alaska has a pension problem. Hawaii has a pension problem. Connecticut and New Jersey have pension problems. Not Wisconsin.

Mutaman said...

So it turns out, even with no democrats in the room, the right wing idiots still can't pass a valid law. And in explaining why, the ole law professeer is reduced to stating: "What exactly does that mean?"

Good explaination Anne. Maybe its best you left the legal talk to the grownups. Keep taking those important pictures.

former law student said...

If the Assembly could waive the process that sends it to committee, it seems to me that any errors in that process are irrelevant to the ultimate disposition of the case even if you prevail on those points.

Even if the batter hits one out of the park, he still has to touch all the bases. Basically the DA is asserting the batter never touched second.

garage mahal said...

Presumably because she has the reputation of being liberal and a Democrat. That doesn't mean her ruling is wrong, just predictable.

Sumi was first appointed by a Republican Governor.

Rialby said...

"Sumi was first appointed by a Republican Governor."

David Souter was appointed by GHWB. Big effin deal.

Do you ever contribute anything of value Garage?

hombre said...

garage wrote: Sumi was first appointed by a Republican Governor.

Earl Warren, Harry Blackmun and David Souter were appointed by Republican presidents. Did you have a point here?

Bryan C said...

Carl, you should re-read Simon's answer to your question.

This post from March 11 seems to address these issues pretty comprehensively.

There were two hours of notification, as required. And the Capitol was literally under siege by a Union mob determined to interfere with the legislators doing their jobs, which one would think might represent an "impractical" situation.

But, hey, I guess when you've got a Judge in your pocket you might as well use 'em, right?

Simon said...

FLS, I don't think that analogy quite works, primarily because the players in a single game have no authority to change the rules of the game. Perhaps we could break this down into its component parts. If the Assembly's rules for processing bills are just that—an internal rule, subject to the final authority of the assembly alone, and not requiring assent from the Senate or Governor—do you agree that it could change that rule, either generally or for a specific bill?

hombre said...

Mutaman wrote: And in explaining why, the ole law professeer is reduced to stating: "What exactly does that mean?"

Gawd. Another lefty who can't read weighs in.

Thanks for sharing.

garage mahal said...

Earl Warren, Harry Blackmun and David Souter were appointed by Republican presidents. Did you have a point here?

You said, without evidence: "Presumably because she has the reputation of being liberal and a Democrat."

I just noted she was appointed by a Republican Governor.

Did you have any evidence that "she has the reputation of being liberal and a Democrat"?

carrie said...

Judge Sumi and her husband both used to work at the Wis. Dept. of Justice and, I assume, both used to belong to the attorneys' union there. She served in the Thompson administration, but not necessarily in a role that required her to be a staunch republican. I think that she has always kept her political leanings amibugous.

Leland said...

He said the state had a chance to substitute judges, but decided not to do so.What exactly does that mean? It's a slight to Sumi, but why?

Perhaps they want to expose just how deep the rot goes. If you substitute the judge, the opposition gets to claim your playing politics with the legal system and your proponents don't find out just how bad the system is. Not switching the judge doesn't restrict other options and at worst; WI loses more money it can't afford. However, money lost now won't be as big as the gain from identifying and fixing the problem long term.

Sofa King said...

It seems that my comments are not being posted for some reason.

AJ Lynch said...

"Sumi" is pronounced sue me? Great name for a lawyer.

Old Dad said...

My guess is that the Republicans anticipated a politicized ruling, and knew they had a procedural solution to move the bill forward anyway. They were looking for ammo in the real judicial fights to come, and it looks like they got it.

Lukedog said...

Issob,

You kind of lost me at "I don't live in Wisconsin"

Still, I just have to say...
If you want to comment on the protesting, the 14 senators leaving, and CB, etc. read the Budget Repair Bill and Budget Bill; it is it's own particular brand of crap.

If you read those and still don't understand why people are protesting, than we'll agree to disagree. Until then, I'll just have to assume you don't understand.

Prosser stated that he "would be a complement to Walker" He also describes himself as a conservative and in the legislature voted with Walker 95%? of the time.

Also, I think you kind of made my point by starting your post with "lefttists..." and finishing it with "makes one want to vote for Prosser..."

Birkel said...

former law student @ 12:44pm:
"Wisconsin doesn't have a pension problem."

Response:
When the bills can't be paid, will there be a problem?

madawaskan said...

AJ-

Sumi" is pronounced sue me? Great name for a lawyer.

LOL! Her first name was "Soe"...

Soe Sumi.

Chris said...

Prof. Althouse, in a post entitled "The 'open meetings' nonsense" (March 10, 2011 11:38 AM), you dismissed the Open Records challenge to the amended bill stripping collective bargaining rights from Wisconsin public employees.

Now that a real (and highly respected) Wisconsin Circuit Court Judge has ruled on the issue, would you care to revisit your analysis? Could you explain in detail where your earlier analysis differs from Judge Sumi's reasoning and ruling?

Revenant said...

It is pointless to quibble over whether or not the judge is biased.

Just pass the law again; problem solved.

retire05 said...

Professor Althouse, here is the money quote:

"Sumi said Ozanne was likely to succeed on the merits."

So, you're a law professor. Answer these questions:

would that statement not be considered prejudicial on the part of Judge Sumi as to the outcome of the case?

Is it normal for a judge to comment on a possible legal outcome?

What authority does a county judge have to rule on state law?

Has Judge Sumi set herself up for an automatic appeal based on her statement?

Simon said...

Lukedog said...
'Prosser stated that he "would be a complement to Walker"'

Where is that statement found? 'Your search - Prosser "would be a complement to Walker" - did not match any documents.'

Martin L. Shoemaker said...

garage mahal said...

Did you have any evidence that "she has the reputation of being liberal and a Democrat"?

I generally read "presumably" as a confession that "No, I have no evidence."

madawaskan said...

The kiddos are on Spring Break.

Hello Republican Legislature-

Do the do-over.

Gawd this is when you wish Republicans could flash mob and rush the Capitol building chanting:

Of forget it chanting is so literally unintelligible-

Do the Do-over! would end up sounding like a call for porta-potties.

Phil 3:14 said...

FLS said;
A lawyer must use every bullet in his gun.

More violent rhetoric from the left! ;-)

hombre said...

garage wrote: You said, without evidence: "Presumably because she has the reputation of being liberal and a Democrat."

Yep. "Without evidence" is certainly consistent with "presumably."

So are you now saying that her appointment by a Republican is evidence that she is neither liberal nor a Democrat? Or are you simply presuming that?

The difference here, garage, based on past performance, is that I know I am presuming while you think you are presenting evidence.

Trooper York said...

They went in front of this douchenozzle for the same reason the NFL players filed in Minnesota. Home field advantage.....now I don't know for sure.....but I bet it is left field.

Issob Morocco said...

Lukedog, I don't think it is too hard to lose you unless I happen to be in full agreement with you.

As for Prosser, out of context three word quotes is not proof of bias. Put the whole document out to see or quit your complaining.

And that follow up of Prosser being a conservative and voting with Walker 95% of the time, how is that different from someone being liberal and voting with Chris Larson 95% of the time short of it fits into your belief system better?

As for the bill, I do understand it and we will disagree, as no public sector employees should have collective bargaining rights, in my opinion. I say that with experience as a public sector union employee.

Glad to see you are just understanding me, even if late in the thread.

Michelle Dulak Thomson said...

fls,

A lawyer must use every bullet in his gun.

Not necessarily; you wouldn't want, for example, to use two arguments that might each work in isolation, but together undermine one another.

But in this case, what's gained? The votes to pass the bill again (presumably renamed) are there, should it be necessary. I presume the purpose of moving so quickly was to make the Democratic refugees in Illinois look silly for being absent from the action. But so far as I can tell from the analysis at Volokh, the Republicans complied with the law.

wv: tyzath. Sounds like a minor demon in H.P. Lovecraft.

hombre said...

retire05 wrote: "Sumi said Ozanne was likely to succeed on the merits."
...
would that statement not be considered prejudicial on the part of Judge Sumi as to the outcome of the case?


A judge is required to make that finding before issuing a temporary restraining order.

The answers to your last two questions are "yes" and "no".

Hope that helps.

madawaskan said...

You know...

If her first name was Sash-

She'd be raw tuna.

Sash Shumi.

( You gotta sound it out like a drunk from some borough of New Yawk.)

Michael K said...

Outstanding ! Enact the original law with the budget items in it ! The fleebaggers are home and are heroes.

Go for ot !

garage mahal said...

Hombre
I did miss "presumably". Sorry.

hombre said...

@retire05:

Sorry. Your question asked "What authority ...?" A "yes" answer was not responsive.

Typically, county judges, usually called something like Superior Court judges, are the trial judges in a state and, as such, have juristiction to enforce and interpret state law.

I assume that is true in Wisconsin. If not, the Professor would have said so and this discussion would be moot.

Almost Ali said...

Exactly who makes the senate's rules?

Wisconsin needs a change of venue.

hombre said...

@garage: Apology accepted. Thank you.

Lukedog said...

Issob,

Found the link through www.wispolitics.com

Press release from 12/8/10

No, I don't mean read just the CB piece of the bill. I mean the whole bill/bills. My personal experience is that significant amounts of people have been showing up to the capitol to protest things OTHER than CB and increased cost to health care and pension, etc.

Things like: no early-release for non-violent crimes like drug offenses, less restriction on phosphorous run-off from factories, cuts to Badger-Care, Medicaid, drug-coverage for seniors, school funding...I mean there really is just a shitload of things to disagree with in this set of bills.

You might be thinking, I don't live in Wisconsin, why would I read this whole set of bills? Or, I don't even know what BadgerCare is?? To that I would say, stop pretending like you understand what is going on in Wisconsin.

And, for crying out loud, stop
commenting on things you don't understand.

Sloanasaurus said...

This preents the opportunity to force the senators to flee the state again.

A strategy as has been mentioned above would be to repass the original legislation with the budget items in place with a 24 hour notice.. This could cause the Democratic senators to flee to Illinois for a second time. I think that would look pretty bad.

If they don't flee, then you have passed the original legislation with the required quorum and the Senators don't look much like heroes anymore. If they do flee, then you can move to pass the stripped down bill with a 24 hour notice.

Jeffery said...

Ann: If the judge decides this violated open meetings law, does that then invalidate all the laws and decisions passed via the same method by the previous regime"??

Chris said...

For all of those pointing out that a "re-do" will fix the procedural shortcomings, you are probably right. So be it.

Thankfully it is now out in the open that the Republicans in the Wisconsin Legislature did not follow the law when the rammed through the legislation.

And keep in mind that this time, the people causing the trouble aren't a few hooligans hanging around the capitol, putting up painters tape, or writing rude signs:

The people who are responsible for making Wisconsin's laws are not following the law.

Right-Wing Commenters: Go ahead and make excuses for this lawlessness. I'm calling you out.

Ephraim said...

Simi has decided that even though the open meetings law exempts special sessions which is CONSTITUTIONAL under the 4th amendment of the Wisconsin Constitution. I think that Simi should get another pair of eyeglasses or Psychiatric help to compensate for her obvious mental disorder--Liberalism

Simon said...

Chris said...
"Thankfully it is now out in the open that the Republicans in the Wisconsin Legislature did not follow the law when the rammed through the legislation."

No: the accusation is "out in the open." But we knew that already. Sumi's decision is suggestive of her view on the merits, but it is not a decision on the merits, at least as I understand Wisconsin's standards for granting temporary injunctions. And even if it was a decision on the merits, would you have heralded Judge Vinson's ruling on Obamacare by writing "it is now out in the open that the Democrats in Congress did not follow the law when the rammed through the legislation"? We all know the answer to that one, don't we.

I do, however, appreciate your admission that the protesters are "hooligans."

Ignorance is Bliss said...

Chris said...

Now that a real (and highly respected) Wisconsin Circuit Court Judge has ruled on the issue, would you care to revisit your analysis? Could you explain in detail where your earlier analysis differs from Judge Sumi's reasoning and ruling?

Chris- You're jumping the gun a bit here. The judge has not yet ruled on the issue, she's only issued a temporary restraining order. As such, she has not yet explained her reasoning.

Triangle Man said...

does that then invalidate all the laws and decisions passed via the same method by the previous regime"??

Jeffrey, someone would have to sue for each one.

madawaskan said...

Well this might tell you more of what Sumi's thinking is on the matter:

****
The open meetings law requires 24 hours' public notice of meetings, or two hours in emergencies. Ozanne argued the emergency standard did not apply and that even if it did, the meeting didn't follow the law because the committee met with less than two hours' notice.

Ozanne also argued the meeting violated the law because people had difficulty getting into the Capitol amid tight security and because it was held in a small room that could not accommodate the large crowd trying to get in. Sumi took note of that, pointing out the state constitution requires the doors of the Legislature to be open when lawmakers are in session.

*********

I said it here before and I'll say it again-

No one will be held accountable for the mob.

That's how they will win this and the Democrats have known that for some time.

Why was the access limited?

The mob.

Who instigated the mob?

Oh could be "responsible" fleeing Democrats referring to this as the-

Union's Pearl Harbor.

Or Jesse Jackson calling it-

Selma! Birmingham! South Africa! Egypt! Libya! Maaaddddisssson!

madawaskan said...

Oh forgot to reference that comment on Sumi and the restricted Capitol access.

JSOnline.com

mike said...

Yeah Chris, seriously. You lost. No open meetings law was violated. This judge is a Democrat and wants to help out her liberal buds. The overpaid public-sector union leeches will still lose their collective corruption..er..bargaining rights. And again, you lost libtard. Now suffer.

Simon said...

madawaskan (quoting JSO) said...
"The open meetings law requires 24 hours' public notice of meetings, or two hours in emergencies. Ozanne argued the emergency standard did not apply and that even if it did, the meeting didn't follow the law because the committee met with less than two hours' notice."

What case restricts the statutory exception to "emergencies"? That isn't what the statute says. § 19.84(3) requires 24 hours notice "unless for good cause such notice is impossible or impractical, in which case shorter notice may be given," to a minimum of two hours.

Z said...

I'm not sure it's a slight to Judge Sumi, Ann. It may be more an indication that the state's open meetings defense is quite weak. Substituting judges won't do much about that. And if you open up s. 19.85, Wis. Stats., you might agree. Also notice the AG's public statement, issued separately: it tellingly says little about the merits, and instead keys in on the appropriateness of a TRO.

madawaskan said...

Simon:

A) You're not looking at the part I bolded.

B) I'm referencing what she supposedly grabbed onto.

C) If you read my follow up comment-you'd get my thinking on it.

Tully said...

Not an attorney, but the basics as I read them:

Wisconsin has an Open Meetings Act, which contains a HUGE exemption for legislative business in sesion. 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."

Senate Rule 93 provides the form for legislative notice during special session. The House has a similar rule. Senate Rule 93(2) states:

"A notice of a committee meeting is not required other than posting on the legislative bulletin board, and a bulletin of committee hearings may not be published."

Barca's original complaint can be found HERE. Essentially it claims that the conference meeting was not in compliance with Joint Rule 3, and therefore was subject to the WOMA requirement of 24 hour notice instead of SR93's bulletin-board-posting requirement.

As to why Sumi was slighted, it may be a matter of recent experience. She sided previously with teachers against the district on the walkout/strike issue.

madawaskan said...

****


Statement on TRO Issued This Morning by Judge Sumi in State ex rel. Ozanne vs. Fitzgerald
Friday, March 18, 2011

Attorney General J.B. Van Hollen issued the following statement with respect to the Temporary Restraining Order issued this morning by Judge Sumi in State ex rel. Ozanne vs. Fitzgerald, et al.:


The Department of Justice plans to appeal today's motion granting a temporary restraining order enjoining the Secretary of State from publishing the 2011 Wisconsin Act 10, commonly referred to as the Budget Repair Bill. The Legislature and the Governor, not a single Dane County Circuit Court Judge, are responsible for the enactment of laws.


Decisions of the Supreme Court have made it clear that judges may not enjoin the Secretary of State from publishing an Act. Further, the Secretary of State is without discretion to refuse to publish an act because of perceived procedural irregularities or constitutional concerns. Decisions of the Supreme Court are equally clear that Acts may not be enjoined where the claim is that a rule of legislative procedure, even one as important as the Open Meetings law, has been violated.


No matter whether individual citizens agree with the substance of the bill or the manner in which it was enacted, I would hope all see the value in ensuring this matter be given the opportunity to work its way expeditiously through the judicial process.

****

WI DOJ

Issob Morocco said...

Lukedog, why is it okay for you to comment on that which you don't understand but I cannot? More leftist tolerance perhaps? Or maybe because I understand more than you like, especially enough to question your bona fides?

BTW your Prosser quote was of his campaign ad and not Prosser himself saying that. In addition it was quoted by many lefty websites out of context so as to fit into the progressive belief system. So you were wrong in your original writing of it.

Happy to hear all of those other issues are what people are really protesting, because nowhere in the old media has anything but CB, healthcare payments and pension payments and its effect of union busting has been the cause d'jour in Mad Town since Valentine's Day.

Perhaps you can be a part of the New Meade-ia and report what is said not what you want to believe was said.

TosaGuy said...

Any Madison judge who doesn't rule against Walker will be tossed out in the next election. So there will be no rulings based on the law or merits of the case until it reaches the State Court of Appeals or the State Supreme Court.

Joe said...

When the state legislature is in session, do they have to continually post 24 hour notices?

AlphaLiberal said...

Judge Sumi, a Circuit Court judge, was appointed by Governor Tommy Thompson. She is a conservative.

And it's not "a procedural problem." It's a blatant violation of and important law.

But I appreciate that most conservatives these days think they can operate government in secret and that they don't have to follow the law.

Walker really has a streak going as a lawbreaker. Refusing to obey the judge's order which found he has placed unconstitutional limits on speech and assembly in the Capitol, for example.

Golly, were the Tea Party folks going on and on about the constitution just a few months ago? Now one of their own has violated the constitution!

chirp, chirp.

Mutaman said...
This comment has been removed by the author.
Triangle Man said...

There hasn't been a ruling yet.

Lukedog said...

Issob,

I know the Prosser info was from his campaign. I sent you the link with the date of the press release, remember? Are you suggesting that Judge Prosser disagrees with those statements? I haven't heard anything about that.

I said that people are also protesting these other issues in significant amts. Again, people are protesting ALL of the CRAP that is in this bill.

Mutaman said...

"Prof. Althouse, in a post entitled "The 'open meetings' nonsense" (March 10, 2011 11:38 AM), you dismissed the Open Records challenge to the amended bill stripping collective bargaining rights from Wisconsin public employees.

Now that a real (and highly respected) Wisconsin Circuit Court Judge has ruled on the issue, would you care to revisit your analysis? Could you explain in detail where your earlier analysis differs from Judge Sumi's reasoning and ruling?"

Great Question? Bet we don't get an answer. Maybe the ole professer should spend less time chasing salt spreaders and more time in the library.

Sounds to me like the reactionaries just got out lawyered by the liberals.

madawaskan said...

Ya, because she went on vacation.

But hell toss out a Temporary Restraining Order on the whole body politic-including the rest of the judiciary because she hasn't ruled on it yet.

How about just giving it to a judge that wasn't about to go on Spring Break?

Or would that be "unethical"?

former law student said...

the open meetings law exempts special sessions

How does it do that?

Issob Morocco said...

Lukedog,

Do you think we don't read what you write? You were caught changing your story to fit a defense of your lefty belief system.

Your original post said.

"Prosser stated that he "would be a complement to Walker" He also describes himself as a conservative and in the legislature voted with Walker 95%? of the time."

You said, "Prosser stated...", as if he personally said that. Which then you backtracked on below after I questioned your quote out of context.

"I know the Prosser info was from his campaign. I sent you the link with the date of the press release, remember? Are you suggesting that Judge Prosser disagrees with those statements? I haven't heard anything about that."

So Prosser did not really say it as you first implied by out of context quote.

And most likely why you have not heard anything about Prosser is that you don't read or listen beyond your belief system. For if you did you would have read or heard of this below from Mike Nichols of the Milwaukee Journal Sentinel article on Mar. 15th, 2011.


"Prosser, for his part, has said he wouldn’t personally have used the word “complement” and describes himself as being in the middle of the court. According to an analysis by the Wisconsin Law Journal, he is, in fact, a much less predictable vote than other justices typically described as being on the conservative side."

Finally, you perkily posited this gem.

"Found the link through www.wispolitics.com

Press release from 12/8/10"


But you didn't link but wrote the http site. A link would have allowed me to go directly rather than look it up just to correct the record.

Water to the rock, eroding the leftist propaganda one post at a time.

Fen said...

Refusing to obey the judge's order

Wait. Did this judge ever camapaign for/against Collective Bargaining? Because if he didn't, then "surprised" us with this ruling, he should be impeached/recalled.

At least according to Libtard logic.

BJM said...

When the political going get tough you can always count on the Dems to judge shop.

Kim Grimmer said...

Anyone of you on the right (or far right) just blithefully saying: "go do the bill passage again, but get it right this time," are, in my opinion, living in LaLa Land. The Two Scotts and Jeff Fitzgerald aren't going to touch that approach with a ten foot pole. They don't want the Square filling up again with "slobs," "thugs," and "long haired goof-f***ers" (Scott Fitzgerald's words) by the hundred thousands, when they can't mobilize (get 'er up) more than 3,000 Tea partiers to a counter-demonstration on February 19.

More importantly, just taking the bill up again will inspire the recall petition folks to work even harder.

The GOP will stick to the courts because that is the safer course for them, and they know they have already totally lost the PR battle on this ill-conceived effort to demonize teachers, firemen, policemen, screw-up our schools, and devastate a University System that is an economic engine for the state's growth.

This has come about because your beloved Governor cares far more about his national street cred than working in a cooperative way with people who were willing to give him 90% of what he wanted; and wanted the middle class to all turn on one another with vitriol. That's the true class warfare, and the Governor and the folks at the McIver Insitute are regaling in it. If you can't see his true colors, God bless you.

Regardless, the winds of change are blowing now.

DCS said...

Judge Sumi.
I just love her name.

BJM said...

@Mutaman

And in explaining why, the ole law professeer is reduced to stating: "What exactly does that mean?"

Are you really that obtuse or simply stupid?

cubanbob said...

Revenge is a dish best served cold.
Walker and the Republican's ought to reintroduce the bill with a 24 hour notice. Better still introduce a new bill eliminating outright all civil service unions at the state and local level and include in the bill a right to work act. If you are going to hang, might as well hang for the right reason.

BJM said...

@Kim Grimmer

and wanted the middle class to all turn on one another with vitriol.

To what end?

btw-The middle class voted and Walker was elected, so aren't you guilty of the very thing you're decrying?

Mutaman said...

"Are you really that obtuse or simply stupid?"

Im not so stupid that with total control of the legislature and the opposition not even in the room, I coulnd't get an enforceable law passed.

former law student said...

When the political going get tough you can always count on the Dems to judge shop.

But they didn't judge shop. The case was assigned to someone about to go on vacation. That shows a lack of planning to me.

madawaskan said...

This is sort of interesting from the Democrat lawsuit:

44.Wisconsin Constitution art. IV Section 17(2) Provides that: "[n]o law shall be enforced unless published." Secretary of State La Follette is required to publish every act passed by the Legislature and approved by the governor within ten working days of the enactment. Sec. 35.095(3)(b) Wis. Stats.

Maguro said...

Im not so stupid that with total control of the legislature and the opposition not even in the room, I coulnd't get an enforceable law passed.

Declaring victory a bit early, aren't you?

Kim Grimmer said...

@BJM

I agree he won the election, my guy lost after running a tepid campaign. Walker is a great campaigner. Tip of the hat to Walker.

I was looking forward to seeing his plan for dealing with the deficit and reforming government to make it smaller and more efficient, and cutting taxes (a good thing). I am a trial lawyer but thought the tort reform measure was a good one, and the frivolous action reform went too far but wasn't wretched. I didn't have a problem with some of the earlier special session bills to hand out money to new corporations that relocate here, and the Governor actually announced a great looking company moving to Racine County yesterday.

But the union-busting part of the BRB had virtually no support from the very school boards,county boards and city councils that the Governor claimed to be trying to help. Moreover, it violated the meme of the far right that big government should keep its nose out of the affairs of local government. It was frankly just unnecessary as an emergency effort to resolve this year's smaller budget "crisis." Why, when the Dems offered to come back if the Governor would just take the union busting out of the "hurry-up" BRB,and save it for the Budget bill did the Governor not take them up on it? He would have had the votes to do it in a more deliberative way.

Do you really think he couldn't foresee the stir he was going to cause by "springing" that on Wisconsin? (and if anyone feels that wasn't sprung remember his "drop the bomb" comment to Fake Koch) If you have proof that he was honest with the electorate on the union-busting effort before November 3, I am anxious to see what you can put forth as evidence on that other than he didn't like the resistance he got from AFSCME and other unions in Milwaukee County. From that he wants the public to believe that we were supposed to divine his intention to over-turn 50 years of labor law in Wisconsin.

"To what end, you ask?" To get the law passed. He thought that the public would turn on the unions when they rose up on the issue because he couldn't tear himself away from watching the reruns of his justifications for the law on Fox News. The polls, even the right leaning Rasmussen polls show that he made a fundamental miscalculation. The public listened to their local community leaders on TV, in radio interviews and in coffee shops and saw that this was an over-reach that wasn't in the best interests of their communities.

If you feel that this is what the majority of Wisconsinites hired the guy to do, get you supportive rally going. The Capitol Square is pretty empty these days. Or if it will be easier, get it going somewhere else. I know, you don't have to bother doing that, because your side won the election. But until you show me some proof through some kind of poll or rally that supports that the electorate hired him to bust unions, I say "Hogwash."

P.S. Go Bucky, beat the Wildcats (Hopefully something all of us angry people can agree on.)

madawaskan said...

Preemptively the Secretary of State La Follette whose duty it is to publish the law is a-

Democrat.

Kim Grimmer said...

By the way, here is my take on the judge's decision today:

http://madcityexit.blogspot.com/2011/03/train-is-derailed-judge-sumi-grants.html

madawaskan said...

For added context this comment by cyboygan at Volokh.

********
cboygan says:
There were two legal efforts to stop the bill from being published. The first was brought by the Dane County Corp Counsel challenging the bill on the basis of the “fiscal” issue. Dane County was turned down in its efforts for a TRO last week and a hearing was scheduled for today on the merits. That suit was dismissed per agreement because a TRO was issued this morning in the second suit.

The second suit was seeking to have the publication of the bill stayed because of the alleged violation of the open meeting law. This was brought by the Dane Co. DA in his role of enforcing the state open meeting law. The circuit judge granted the TRO despite the case law that supported the proposition that publication could only be challenged if there was a constitutional issue rather than a proceudral or statutory violation in the enactment process. Wisconsin’s open meeting law is statutory, not constitutional. The judge scheduled a further hearing for the end of the month.

The Republicans can either wait until the rehearing and appeal or they can do over. The problem that they face is that with every day that goes by, the unions are pushing more and more school districts and local governments across the state to settle contracts on terms that are better than what would have been available pre-Walker, but not as good as the budget repair bill would give and which would lock in the full union dues structure for the term of the contract. This is all about delay, whether it is the Democrats going to Illinois, the Democratic Secretary of State taking the maximum time to publish, or the Democrats initiating court challenges. By the time the contracts expire, labor is hoping that they will have recalled Walker and the Republicans and the law will be repealed.

*****

Lincolntf said...

This whole thing has been about the Government protesting the voters, not the other way around. That the Judiciary has joined the attack is a not unexpected development. Power hunger abides everywhere, waiting for it's chance.

madawaskan said...

Is anybody putting the whole picture together?
If you scroll back up to the AG Van Hollen statement I posted above-pay close attention to this section:

The Department of Justice plans to appeal today's motion granting a temporary restraining order enjoining the Secretary of State from publishing the 2011 Wisconsin Act 10, commonly referred to as the Budget Repair Bill. The Legislature and the Governor, not a single Dane County Circuit Court Judge, are responsible for the enactment of laws.


Decisions of the Supreme Court have made it clear that judges may not enjoin the Secretary of State from publishing an Act. Further, the Secretary of State is without discretion to refuse to publish an act because of perceived procedural irregularities or constitutional concerns. Decisions of the Supreme Court are equally clear that Acts may not be enjoined where the claim is that a rule of legislative procedure, even one as important as the Open Meetings law, has been violated.

Lukedog said...
This comment has been removed by the author.
Simon said...

The Van Hollen statement raises more questions than it answers, madawaskan. He says that "[t]he Legislature and the Governor, not a single Dane County Circuit Court Judge, are responsible for the enactment of laws"; is he seriously challenging the power of a circuit court to enter a preliminary injunction pertinent to ligitation? What's his authority for that? He amorphously refers to "Decisions of the Supreme Court" on two fronts; which cases? And his claim that the open meetings law is analogous to a rule of legislative procedure makes little sense precisely because the open meetings statute is a statute—not a rule of legislative procedure. And the Supreme Court cases that I suspect he has in mind—Custodian of Records, supra, and Milwaukee Journal Sentinel et al v. Wisconsin Dept. of Admininistration—sharpen that difference, not dull it: They rest that the point Van Hollen is making on the distinction that either chamber of the legislature is freedom to amend its own rules unilaterally, which is not true of statutes.

Mutaman said...

I just read K. Grimmer's analysis of what happened today at http://madcityexit.blogspot.com/2011/03/train-is-derailed-judge-sumi-grants.html.

First rate legal analysis and I highly reccomend it. Exactly the kind of discussion you're not going to get from Althouse.

madawaskan said...

Simon

Think about it.

One judge can render a bill null by not making a judgment before taking a vacation.

Had she made a judgment that be one thing-but basically she is giving the Democrats the chance to void the law passed by both bodies of the Legislature and the duly elected Governor.

See here Une autre fois:

Wisconsin Constitution art. IV Section 17(2) Provides that: "[n]o law shall be enforced unless published." Secretary of State La Follette is required to publish every act passed by the Legislature and approved by the governor within ten working days of the enactment. Sec. 35.095(3)(b) Wis. Stats.

See the problem/technicality?

madawaskan said...

You wish to give one judge that much power via a "non-decision"?

I haven't looked at the relevant WI Supreme Court decisions but I highly doubt Van Hollen is blowing smoke.

former law student said...

I highly doubt Van Hollen is blowing smoke.

Then where are the cites? One or two words should be sufficient; simon can say Groppi and we can all identify what he's talking about.

former law student said...

but mad:

Section 17(1) says:

(1) The style of all laws of the state shall be "The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:".

If the people weren't properly represented in senate and assembly, how can any enaction be valid? And if a law was not validly enacted, why would the secretary of state be obliged to publish it?

Simon said...

madawaskan, so your argument is that a district court (whatever Wisconsin chooses to call them) may strike down a law (i.e. issue a permanent injunction against its enforcement after judgment), but may not issue a preliminary injunction while litigation is pending? That's a startling proposition. What's your best case for that?

Big E said...

How about if we choose to ignore the ruling altogether. It's good enough for Obama.

madawaskan said...

Holy merde....

Hold on guys! I was off reading People.com

donne moi une minute sil vous plait.

madawaskan said...

Or in other words

Incoming! Being French I feel the urge to surrender....

****


FLS

Groppi? You cede me too much there.

Hell wouldn't there be an official doc for the WI AG action?

I don't live in Wisconsin. Don't know where to find it.

But why the would Van Hollen bluff?

Simon said...

madawaskan said...
"You wish to give one judge that much power via a 'non-decision'?"

It's not a question of my giving it, but of why you would take away a power that courts have traditionally exercised. See, e.g., Denlow, The Motion for a Preliminary Injunction, 22 Rev. Litig. 495 500-502 (2003). You're acting as though this deeply-rooted power was some kind of novel procedural device!

"I haven't looked at the relevant WI Supreme Court decisions but I highly doubt Van Hollen is blowing smoke."

Oh, without any doubt he is blowing smoke. He characterized a statute as an internal legislative rule even though the difference is obvious and the Supreme Court has made quite clear (in the two cases I cited above) that the distinction precludes such an equivalence. The question is what cards he's holding; sometimes what looks like a bluff is a feint! But sometimes it is a bluff. My suspicion is usually falsus in unum, falsus in omnibus, but in this case, I'm very skeptical of the court's decision, so who knows what he's holding? Many an attorney has learned the hard way that being right doesn't guarantee a win. Van Hollen is on the right side of this suit, but that is no guarantee of a win.

madawaskan said...

Simon

Where did I say anything like what you propose?

Let's see what you've stated or ignored-

You have yet again no response to this:

Sumi took note of that, pointing out the state constitution requires the doors of the Legislature to be open when lawmakers are in session.

This is the third time I've asked you to respond to this.

Call me stupid I don't care but I have a feeling Judge Sumi is going to hang a lot of hat on that.

madawaskan said...
This comment has been removed by the author.
madawaskan said...

Simon

So really you think Van Hollen is bluffing?

Do you know where to find the actions taken by the Wisconsin DOJ?

How can you claim he is full of it-if you haven't read it?

I can't find it.

Simon said...

madawaskan said...
"So really you think Van Hollen is bluffing?"

No, I think he's reacting to an unexpected event in the blustery manner of a politician without taking time to think the issues through—which is to say, blowing smoke. My criticism is of his public statement, not his litigation strategy, which brings us to this:

"How can you claim he is full of it-if you haven't read it?"

Because his comments have been publicly-reported (you quoted them!) and I can measure those comments against what we know the Supreme Court of Wisconsin has said. I've already described the deficiencies of his statement.

Simon said...

madawaskan said...
"Simon ¶ Where did I say anything like what you propose?

Your comment above, at 3/18/11 6:48 PM.

"You have yet again no response to this: 'Sumi took note of that, pointing out the state constitution requires the doors of the Legislature to be open when lawmakers are in session.' This is the third time I've asked you to respond to this."

I would challenge that you've asked me to respond to that three times, but let's not get distracted by that squabble. You've raised it now, and after careful consideration here is the full response it deserves: "Who cares?" The way you introduce the quote—you know, "oh, Simon has no response to this point"—suggests you think that this is some kind of hugely important silver bullet of a statement, but honestly, what does it matter? What response am I supposed to have? Judge Sumi raised the point; she obviously thinks it's relevant (perhaps in some kind of Breyerian "this demonstrates our commitment to open government and should be seen as the backdrop for the open meetings law"); it isn't; who cares? Kim's post on the case, which he kindly linked above, reported that she also made a defective analogy to ownership. Am I supposed to respond to every nutty point in the decision? Why?

madawaskan said...

*****
Van Hollen graduated from St. Olaf College in 1988 with an undergraduate degree in Political Science and Economics. He earned his law degree two years later from the University of Wisconsin Law School.

Van Hollen began his public service career as an Assistant State Public Defender in Spooner, Wisconsin. In 1991, he became a federal prosecutor, serving as an Assistant United States Attorney for the Western District of Wisconsin. Governor Tommy Thompson appointed Van Hollen as District Attorney in Ashland County, where he served for six years. He was subsequently appointed by Governor Thompson to serve as Bayfield County District Attorney. Van Hollen was later elected to the position, enjoying bi-partisan support as Bayfield County's only elected Republican.

Prior to becoming Attorney General, J.B. was appointed United States Attorney for Wisconsin's Western District in 2002 and served there until 2005.

*******

Are you dissing a product of the University of Wisconsin Law School?

The horror! -on this blog no less.

According to you he is simply a politician which given the above you might want to amend.

Be careful of your prejudices they might proceed you.

Michael said...

The ruling presents another wonderful opportuntiy to have endless re-protests in the Capitol. Walker should use this as an opportunity to do as Ronnie did with the Russians, let the Unions spend all of their cash protesting this til the cows dethaw.

Simon said...

*sigh* madawaskan, do you suppose that I was unaware that Van Hollen has a JD? Your accusation that "[a]ccording to [me] he is simply a politician" is ill-taken. He is a lawyer, but he is also a politician, and what I said above was that the press release "react[ed] to an unexpected event in the blustery manner of a politician…." In saying this, I am dissing neither him nor UW—I am pointing out that his press release doesn't work. My point, which I thought was obvious, was that he wold have done better to issue the press release wearing his lawyer's hat than wearing his politician's hat.

madawaskan said...
This comment has been removed by the author.
madawaskan said...

Simon said:

Am I supposed to respond to every nutty point in the decision? Why?

Really you think a restraining order is a decision?

Basically if you agree or feel that Judge Sumi can grind both the duly elected Wisconsin Executive and Wisconsin Legislature to a halt effectively keeping them from complying with the part of the Constitution which requires them to publish the bill in order for it to become law-you have to have some basis in the Wisconsin Constitution by which she grants herself that authority.

I have a suspicion that she grants herself that authority on the "nutty thing" you wish to ignore, yet at the SAME time you agree with her authority to do all of the above blindly.

hombre said...

Well, nobody would do the work for me so I had to look up the WI Open Meeting Law. Paragraphs 19.97(2) and (3) do give the D.A. authority to bring civil actions to enforce the law.

So much for that theory.

Simon said...

madawaskan said...
"Really you think a restraining order is a decision?"

It's a decision, yes. She was asked to grant a preliminary injunction; she decided to agree to that motion. It isn't a final decision, if that's what you mean.

"Basically if you agree or feel that Judge Sumi can grind both the duly elected Wisconsin Executive and Wisconsin Legislature to a halt effectively keeping them from complying with the part of the Constitution which requires them to publish the bill in order for it to become law-you have to have some bases in the Wisconsin Constitution by which she grants herself that authority."

In other words, you are claiming that the power to issue a preliminary injunction is something novel, that this is an imperious use of a power Sumi has unilaterally arrogated to herself in some kind of unprecedented bit of partisan hackery? Wow. This is a perfect example of why laypeople should enter legal debate with considerable trepidation. Still, I'll answer the Constitutional question. Article VII § 2 provides that "[t]he judicial power of this state shall be vested in a unified court system…." But what is "the judicial power"? It is not simply an empty phrase. It vests in the courts of Wisconsin the province and toolbox of judges and courts as those tools were understood when it was adopted. Justice Frankfurter made my point (albeit speaking of the federal constitution, so mutatis mutandis) far more elegantly than can I, in Coleman v. Miller: "In endowing this Court with 'judicial Power,' the Constitution presupposed an historic content for that phrase … Both by what they said and by what they implied, the framers of the Judiciary Article gave merely the outlines of what were to them the familiar operations of the English judicial system and its manifestations on this side of the ocean before the Union." The power to issue injunctions, including preliminary injunctions, is unquestionably a part of the "judicial power" vested in the Wisconsin court system by her Constitution. Your position is, with all due respect, ahistoric and uninformed.

madawaskan said...

Simon

You are asking everyone here at Althouse to accept you as a better expert on the Wisconsin Supreme Court, to have better resources at your disposal and a superior interpretation of that law as you sit in-Illinois-or where ever.

You do this while ignoring Van Hollen's credentials.

If anyone was to compare and contrast your credentials to his most rational people would hedge their bets on Van Hollen.

Then, you assert that Sumi has the authority to do what she has done without any justification.

Consider yourself-

*Spanked.*

Fen said...

Start laying off public employees while it runs the appeal process.

Then call a special session and vote the whole thing back in.

Simon said...

madawaskan said...
"You are asking everyone here at Althouse to accept you as a better expert on the Wisconsin Supreme Court"

Hardly. I've made some points and explained them. Readers may accept them or not. I'm happy to keep explaining why I'm right, but I think it's amply clear that the reason I'm right is, well, the reasons I've mentioned, not any inherent capacity in myself to be right. Even the most inept lawyer on the planet can infallibly state a specific rule of law by quoting from the hornbook!

Here's the problem, madawaskan: You seem to think that I am claiming particular legal expertise by saying that courts may grant temporary injunctions. Think about that. Do you understand?

"You do this while ignoring Van Hollen's credentials."

I don't ignore his credentials, I have explained why I think his statement has problems. That's the thing about making public statements which make verifiable claims: when the claims are problematic, people can call you out on the problems.

"If anyone was to compare and contrast your credentials to his most rational people would hedge their bets on Van Hollen."

Absolutely! You're right. But if they went beyond mere credentials, and compared what I said against what he said, I don't think many lawyers would side with him on the points I've criticized.

"Then, you assert that Sumi has the authority to do what she has done without any justification."

That's just projection on your part, I'm afraid. You're questioning an authority that judges have had for centuries, with no basis other than partisan convenience. You've cited not a scrap of evidence for your position, which isn't surprising because there is none. And then you tell me I haven't justified my position? Projection.

"Consider yourself- *Spanked.*"

Not unless you're Dana Delany.

David said...

Did she even deal with the issue of irreparable harm? What kind of lawyers are you educating there at Wisconsin?

Mutaman said...

Did she even deal with the issue of irreparable harm? What kind of lawyers are you educating there at Wisconsin?


"Demonstration of Irreparable Harm to the Public if the Preliminary Injunction is not issued.

Judge Sumi said she was satisfied that there was legal authority in Wisconsin that where the government is seeking to enforce public rights, as the Dane County DA was doing in this instance, there was less of a burden to show irreparable harm in order to secure injunctive relief pending a full hearing, citing Forest County v. Goode, 219 Wis.2d 654, 579 N.W.2d 715 (1998). She noted for the record that when she researched and found the Forest County case, it seemed familiar to her, and she then recalled that she had argued for the Attorney General as an intervenor, and that the case had been handled for the plaintiff Forest County by current Supreme Court Justice Michael Gableman when he was Forest County Corporation Counsel. She cited the decision as holding that when a public entity was seeking to enforce a statute by injunctive relief (in Forest County the enforcement of a zoning code) the public entity did not have to show irreparable harm. Judge Sumi then said she believed that regardless of Forest County's applicability, she was satisfied that there would be irreparable harm to the citizens of Wisconsin if the temporary injunction did not issue. She again noted that forfeitures imposed on legislators (suggested as adequate relief by their attorney, AAG Maria Lazar) would be of scant or no effect in protecting the public's interest under the Open Meetings Law in the context of this case, and that the legislators had already asserted (maybe suggested?) that their judicial immunity, while in session or within 15 days before or after a session, currently protected them from sanction anyway. Thus she concluded that any remedy other than injunctive relief made no sense."



http://madcityexit.blogspot.com/2011/03/train-is-derailed-judge-sumi-grants.html?showComment=1300491005398

David said...

Yeah, I read this after my post, Mutaman. She did address the issue, thank goodness, but it's a pretty weak argument.

It's also curious to me that she assumes that the courts should decide whether there is "good cause" to reduce the notice period from 24 hours to two. This is the essence of here conclusion that the plaintiffs can convince her of reasonable likelihood of success on the merits.

Call me old fashioned, but it seems there is a pretty serious separation of powers issue here. Doesn't the legislature get to make the decision as to whether there is good cause for an action relating to its own internal procedures?

Perhaps there is some law or ruling that decides this issue. If not her ruling seems vulnerable on that basis alone.

Mutaman said...

"Doesn't the legislature get to make the decision as to whether there is good cause for an action relating to its own internal procedures?"

I think a legislature that is so incompetent that they can't follow their own rules, even when the other side is out of the state, better be subject to judicial review or who knows what thjey might end up doing.