March 21, 2011

"Having taken a closer look at the text of Judge Sumi's decision in Ozanne v. Fitzgerald, I am quite frankly astonished."

"The court seems to have managed to enjoin publication of the statutory changes in the budget repair bill without addressing any of the difficult issues that the case presents."

Says Marquette lawprof Rick Esenburg.

AND: More here:
Setting aside the multiple jurisdictional issues that should have led the court to conclude that it did not have authority to hear the case at all, let’s focus on the heart of the defendants’ (and the unions) dispute: whether the conference committee meeting was properly noticed. It was....

79 comments:

Fred4Pres said...

I am astonished you are astonished.

I guess I am more jaded.

Fred4Pres said...

I bet she ate some Japanese iodide laced cheese. Yes the radioactive plume made it all the way to Wisconsin a couple of weeks before the Japanese tsunami/earthquake.

PaulV said...

What do you want Sue Me to do? If he had followed the law he would not have been able to do what he wanted to do. He believees in rule of one man, not rule of law.

PaulV said...

he=she as if does in Crack's New Age theology

Don't Tread 2012 said...

Ends justify the means.

Bushman of the Kohlrabi said...

Rick is a smart guy but I can't imagine why he's astonished. I'm not a lawyer but even I could see how this was going to go down.

Bushman of the Kohlrabi said...

Maybe I'm just a bit more jaded than the average law prof.

Revenant said...

The second link in particular contains a pretty devastating take-down of the judge's ruling.

But this was expected; we knew that the law would end up being suspended by a Democratic judge. It'll just have to work its way through the system while we hope for the best. We are up against a lot of entrenched special interests, and we should expect them to fight with every means at their disposal.

But in the end, we've got the law on our side. So we should win.

Lincolntf said...

In Wisconsin, the only law is the fist.

Chas S. Clifton said...

I wondered when this was happening if the Wisconsin Republicans were glad to see the case before that particular judge, in that her opinion might be one that would be more easily reversed on appeal, leading to a better overall smackdown of their opponents.

Simon said...

I'm still mulling whether the ability of the assembly to bypass the committee entirely has any effect on the case. One question I have is: What is the plaintiff's injury? Assume for a moment that the open meetings law was violated. Is the injury that the meeting happened, or that the bill passed? All else held equal, would they still have a case--would they have standing--if the bill had been defeated in the floor vote? Because if they don't, it seems to me that whatever injury they suffered can't be redressed by the relief they're asking for, which would theoretically be fatal in federal court. (Of course, Wisconsin may have more liberal rules, I don't know.)

Corre∫pondence Committee said...

Is Sumi's son really an AFL-CIO/SEIU employee? The news came out yesterday, but I haven't seen anything about it since.

Kevin said...

But in the end, we've got the law on our side. So we should win.

LOL. Thanks for the laugh! The "law" now is whatever protects the interests of the Permanent Political Class. Haven't you figured that out?

MadisonMan said...

Is Sumi's son really an AFL-CIO/SEIU employee?

Short answer? No.

Almost Ali said...

"Astonishment" establishes the high ground.

Lack of same suggests complicity.

Meanwhile, I'm already blue in the face from saying; we're a nation of men, not laws.

Bushman of the Kohlrabi said...

Short answer? No.

Yeah, it's been at least two whole years since he has been a AFL-CIO/SEIU employee. Thanks for the correction.

damikesc said...

That takedown was vicious. Judge Sumi is laid bare with this.

Heck, even if the Open Meetings Law was relevant here...they STILL followed it.

Bushman of the Kohlrabi said...

I would love to see the Althouse take on this. What sayeth the Professor?

edutcher said...

An activist judge rewriting the law to suit herself.

And we are surprised, how?

MadisonMan said...

Is Sumi's son really an AFL-CIO/SEIU employee?

Short answer? No.


Longer answer: He was 2 years ago.

Mom should have recused herself.

Invoking edutcher's Law, BTW.

Pogo said...

In the modern era, the law is whatever they want it to be, neither more nor less.

She can say 2 plus 2 is 5, and that's the law.

Which means the law is meaningless piffle, but it's still the law.

Lance said...

I don't see the problem with the son being a union guy, either two years ago or yesterday. This doesn't prevent Judge Sumi from making a sound judicial decision, anymore than Justice Thomas is prevented from making sound judicial decisions by his wife's politics.

However the critiques by Esenburg, Nowak, and others suggests that this particular decision is not sound.

Sofa King said...

Mom should have recused herself.

I disagree, inasmuch as there is no obvious substantive interest in the outcome. There may be political or ideological ones, but that is to be expected of judges, who are after all human beings.

I don't think Thomas should have to recuse himself because of his wife and I don't think this judge should have to recuse herself because of her son. It is plenty sufficient to criticize her opinon on legal grounds.

Of course, I doubt most lefties would be as consistent.

TMink said...

Fred, jaded, no.

Paying attention? Yes.

Trey

Pogo said...

The law becoming a capricious and trifling tyrant should be a concern, though.

I have little remaining respect for it. The law seems to be entirely dependent on who sits at the bench, what party they serve, and what ends they seek.

That is, like the US constitution, it must be dead, because people call it "living".

NotYourTypicalNewYorker said...

Judge Maryann Sumi should have recused herself entirely from the Wisconsin battle due to her inability to be neutral in this case. You see, Maryann Sumi has a clear conflict of interest. Her son is a political operative who also happens to be a former lead field manager with the AFL-CIO and data manager for the SEIU State Council.

bagoh20 said...

It's incredibly disappointing to see a judge act like this. To get to her position of authority required the approval of many of her peers. How did that happen? Can you really be a complete political hack and still get to be this level of judge? How can we have any respect for the judiciary when it's run like this? If the judges are corrupt, nothing else matters.

Pogo said...

"If the judges are corrupt, nothing else matters."


And the judges are indeed corrupt.

Hell, I don't know why she bothered writing a decision at all. Her reasoning doesn't matter.

She might as well have listed the ingredients for Prell shampoo.

Revenant said...

LOL. Thanks for the laugh! The "law" now is whatever protects the interests of the Permanent Political Class. Haven't you figured that out?

If that was true, the Citizens United case would have gone the other way. It law often serves the needs of the political class -- but not always.

Besides, I said "should", not "will". We might not win in court, sure. If we don't, we'll have to use a different approach to fix this problem.

Mark O said...

Any seasoned litigator knows this happens all the time. It is a fiction that the system produces justice. It is a wildly flawed method of dispute resolution. And, that includes the criminal system.

Chip Ahoy said...

Enjoin is one of those weird words that causes so much confusion that must keep reading to see if the next sentences will show if something is being prescribed or proscribed.

And if you disagree with me, then that proves you're against all working people.

TosaGuy said...

"Can you really be a complete political hack and still get to be this level of judge?"

Dane County voted.

And they would vote her out if she did anything that didn't gum up the process. Dane County judges will soon be ruling against the law because the dots on the "i"s are too big.

Freeman Hunt said...
This comment has been removed by the author.
Freeman Hunt said...

What can the judge do? The Wisconsin Open Meetings Law probably wasn't written this year. It's old. Who could possibly understand it?

(I hope Klein appreciates all my help in writing his future columns on current events.)

AJ Lynch said...

So the judge's son hasn't worked for a union for two years. Did he happen to disclose who he has worked for in the last two years? I wonder if it could be a PR firm or lobbying firm or some such similar entity that gets its business from unions?

James said...

Can you really be a complete political hack and still get to be this level of judge?


You're kidding, right?

If not, take the case of Pedro Colon. Although Colon is a attorney he never really practiced law. Yet he somehow ended up as the initial representative for Marilyn Figueroa in her sexual harassment lawsuit again then Milwaukee Mayor John Norquist. Predictably he sold her out.

After quitting the state assembly he couldn't find employment; even the incompetent MMSD declined to hire him as their deputy director of legal services.

Then suddenly last year Jim Doyle appointed Colon to the bench in the Milwaukee Circuit. To most people it appeared to be a reward for Colon's loyal support of Doyle's legislative agenda.

Jim Doyle ran this state like a banana republic; last year when he decided not to seek re-election a number of judges suddenly decided to resign or retire, allowing Doyle to pack the bench with his cronies. This year's judicial elections will be very interesting as they are all now running with the advantage of incumbency.

Carol_Herman said...

Maybe, the law is really a unicorn?

vbspurs said...

OT: Nancy Pelosi is released from a Rome hospital, after feeling poorly. She was in Rome to celebrate Italy's 150th independence anniversary.

John said...

It all comes down to the rule of law versus the rule of men which I view as one of the biggest tenants of the social contract. Unfortunately, many are perfectly willing to violate the social contract and rule as they please and not follow the law. Every time a judge or other person in the judicial system flouts the law it moves the country a little closer to anarchy.

MadisonMan said...

Why the notion that a person remains so entangled with their kids' life that they base professional decisions on how it would impact that kid? That's admitting you've failed as a parent, IMO, that you have somehow to rescue them with whatever power you have. Stop infantilizing your children!

(What is edutcher's law?)

ambisinistral said...

Can't Wisconsin appeal to get the TRO lifted?

wdnelson93 said...

"She can say 2 plus 2 is 5, and that's the law.

Which means the law is meaningless piffle, but it's still the law."

Well isn't that just the bitter truth.

Carol_Herman said...

Other than getting "high 5's" from her democrapic team mates ... isn't it possible that SueMe is sensitive enough to know that others in her field think she's an idiot?

And, this little "unicorn" is still sitting in her courtroom. She's done an "injuction" stopping the presses on printing the law ... (Also given how much text there is out there that you don't "enjoin" or STOP THE PRESSES!) Yet, she does.

And, then like a chicken roosting her eggs, she takes the court case and puts it under her "chair." To sit upon.

Even if she's on a two week vacation ... she cannot possibly be on a hiatus from what it means to become a laughingstock.

She stopped the publication of a document that's published for the public.

She sees no downside? She's like a driver with Alzheimer's?

Opinions within the legal profession don't phase her?

Does she still have authority?

Does she crow?

PETER V. BELLA said...

Well at least there will be some benefit from this law. in these tough times, lawyers will make money.

Mutaman said...

I've always found legal analysis by talk show hosts to be quite convincing.

I've heard this Judge referred to as an "activist", a "Democrat" and a'Liberal". I've also heard that she was appointed by that Socialist Tommy Thompson.

I know posters to Althouse hate messy things like facts, but does anyone know if Tommy made the appointment?

knox said...

OT, but I am really tired of the "Shocking Meat Video" ad that keeps popping up on the Althouse home page. Anyone else seeing the disgusting photo?

Dad29 said...

The circuit court twists "L'etat, c'est moi" to "I AM the law."

It's a John Wayne thing. We don't understand.

Carol_Herman said...

Why did the 14 "flee-baggers" race to Illinois, if they didn't even know there was going to be this meeting, bypassing "budget," to vote on the other union nullification "stuff" that was in the bill?

Seems ya got enough notice time out there to have gotten the "flee-baggers" in motion. Luggage containing clean underwear and sox. Gas in the car. Rides offered and accepted. Motel reservations made.

They were clairvoyants?

Dad29 said...

we'll have to use a different approach to fix this problem

Lay off 2,000 State employees, for openers. The munis and schools will take out another 10,000.

On the other hand, I always kinda liked that line "The Court has made its decision, let them enforce it."

Then simply remove all State support for circuit courts.

murgatroyd666 said...

Can't Wisconsin appeal to get the TRO lifted?

Apparently Wisconsin Attorney General Doug La Follette is appealing it.

The news item gives little information beyond that. Isn't Judge Sumi on vacation? Will she have to receive official notification for things to proceed?

Lincolntf said...

The Democrats kicked the gameboard over, and now they're bitching because the Republicans didn't find all the pieces.
Buncha stupid suckbags.

murgatroyd666 said...

The circuit court twists "L'etat, c'est moi" to "I AM the law."

To coin a phrase, "What is government if words have no meaning?"

David said...

Professor Esenberg holds a J.D., magna cum laude, from Harvard Law School, where he was an editor of the Harvard Law Review, and a B.A., summa cum laude, in political science from the University of Wisconsin-Milwaukee.

Over credentialed elitist?

Or a traitor to his class?

James said...

Apparently Wisconsin Attorney General Doug La Follette is appealing it.

Doug La follette is the Secretary of State; J.B. Van Hollen is the Attorney General.

James said...

Wisconsin Department of Justice files petition in case halting publication of budget repair bill

"The appeals court has responded, giving Dane County District Attorney Ismael Ozanne until 4 p.m. on March 22 to submit a memorandum addressing the DOJ's argument that the judicial branch does not have jurisdiction to enjoin the secretary of state from publishing the act. The appeals court order also gives Ozanne until March 23 to respond to the DOJ's petition."

Jay said...

Setting aside the multiple jurisdictional issues that should have led the court to conclude that it did not have authority to hear the case at all,

Liberals don't bother themselves with silly questions on "authority!"

Why they are the authority!

Ralph L said...

What a pile of law blogging today. I'd rather see Meade mud wrestle some more hippies.

murgatroyd666 said...

Doug La follette is the Secretary of State; J.B. Van Hollen is the Attorney General.

Whoops! That must have been a typo. Yeah, that's the ticket! A typo!

Well, maybe a thinko ...

It does say SecState in the news item, at least.

WineSlob said...

Maryann Sumi's a Fringer
The Rules She Grievously Injured
A Withering Hag
A Braggy Old Nag
Most of Us Really Prefer Ginger

vbspurs said...

Knox wrote (hey, there!):

OT, but I am really tired of the "Shocking Meat Video" ad that keeps popping up on the Althouse home page. Anyone else seeing the disgusting photo?

That's no way to talk of Pam Anderson.

(...remember that one, ick)

Marshal said...

It's almost like this Democratic judge decided the case based on her political preferences. How could anyone have predicted that? It's only how law schools have been pushing their students for three decades.

30yearProf said...

All judges are political.

That's why they love restrictions on judicial campaign statements (so they deceive by silence) and they love uncontested "retention" elections (so no one has an incentive to point out their faults). They act like they are unaccountable because ... in most states ... they are.

Open, contested judicial elections are the only cure. At least with them, the voters know what they are getting (whether liberal, conservative, or brain dead).

Her action does, however, show that judges are unafraid of low quality, politically driven decisions. It keeps the cocktail party invites coming.

Meade said...

Ralph L said...
"What a pile of law blogging today. I'd rather see Meade mud wrestle some more hippies."

Hold on, Ralph, video is being processed. They aren't really hippies though. I hope you won't be too disappointed.

Will a big-mouth lawyer and his public union teacher sidekick suffice?

former law student said...

Setting aside the multiple jurisdictional issues that should have led the court to conclude that it did not have authority to hear the case at all

Can Charlie Sykes tell us exactly which court the District Attorney of Dane County should have taken his enforcement action to? From the Wisconsin Open Meetings Law.

19.97 Enforcement.

(1) This subchapter shall be enforced in the name and on behalf of the state by the attorney general or, upon the verified complaint of any person, by the district attorney of any county wherein a violation may occur. In actions brought by the attorney general, the court shall award any forfeiture recovered together with reasonable costs to the state; and in actions brought by the district attorney, the court shall award any forfeiture recovered together with reasonable costs to the county.

(2) In addition and supplementary to the remedy provided in s. 19.96, the attorney general or the district attorney may commence an action, separately or in conjunction with an action brought under s. 19.96, to obtain such other legal or equitable relief, including but not limited to mandamus, injunction or declaratory judgment, as may be appropriate under the circumstances.

(3) Any action taken at a meeting of a governmental body held in violation of this subchapter is voidable, upon action brought by the attorney general or the district attorney of the county wherein the violation occurred. However, any judgment declaring such action void shall not be entered unless the court finds, under the facts of the particular case, that the public interest in the enforcement of this subchapter outweighs any public interest which there may be in sustaining the validity of the action taken.

(4) If the district attorney refuses or otherwise fails to commence an action to enforce this subchapter within 20 days after receiving a verified complaint, the person making such complaint may bring an action under subs. (1) to (3) on his or her relation in the name, and on behalf, of the state. In such actions, the court may award actual and necessary costs of prosecution, including reasonable attorney fees to the relator if he or she prevails, but any forfeiture recovered shall be paid to the state.


Once you begin by talking crap, it's hard to get people to take the rest of your argument seriously.

former law student said...

simon, if the subcommittee met in violation of the open meetings act, then any action it took was voidable. Here, the bill would never have gotten out of committee, and thus would never have come to a vote.

WineSlob said...

@fls:

Re: "Can Charlie Sykes tell us exactly which court the District Attorney of Dane County should have taken his enforcement action to?"

With regard to this issue, it appears that Sykes was quoting Ellen Nowak, the former legal counsel and chief of staff to the Wisconsin Assembly Speaker. Maybe take it up with her.

former law student said...

With regard to this issue, it appears that Sykes was quoting Ellen Nowak

Are you suggesting that Charlie Sykes' headline should have been "I know fuckall about the law, but I find this Republican ex-staffer oddly persasive"?

damikesc said...

Fls, did you even read the article?

Legislative rules trump the open meetings law...which was followed regardless. They gave 2 hrs notice which is all that was legally required given the behavior of the protestors.

Simon said...

FLS, understood, but that doesn't answer my question: Does the injury arise when the meeting occurs, or only when the bill it considers is passed by the legislature? That is, if the assembly had rejected the bill after the committee, could the plaintiffs still have sued (assuming for sake of argument that there was an appropriate remedy)?

What I'm trying to get at is this: the assembly presumably doesn't have authority to waive the open meetings statute, but can it waive the internal rule that considers bills only once they've been milled through in committee, and consider a bill directly on the floor?

AllenS said...

damikesc said...
Fls, did you even read the article?

Awesome.

former law student said...

In 2000, two of Scalia's kids worked for law firms that had George W. Bush for a client in Bush v. Gore. How many conservatives here thought Scalia should have recused himself for that "obvious conflict of interest"?

former law student said...

Legislative rules trump the open meetings law...which was followed regardless.

Neither side had argued that point, according to the judge's order. I guess the judge could have brought up that point sua sponte but why? Did you read the order?

former law student said...

Simon, great questions to which I have no answer. I'm willing to wait till the judge gets back to work.

DKWalser said...

@FLS "Neither side had argued that [legislative rules trump the Open Meetings Statute], according to the judge's order. I guess the judge could have brought up that point sua sponte but why?...

Per the DOJ's petition to appeal the trial court's TRO, the judge's order was inaccurate on this point. In oral argument, the DOJ raised the issue and pointed to the legislative rule that conflicted with the requirements of the statute (per the statute, when a legislative rule conflicts with the requirements of the statute, the legislative rule controls). Perhaps the judge wasn't paying close attention to what was said at oral argument. (I much prefer that explantation to the alternative -- that either the DOJ or the judge has willfully misrepresented what happened during oral argument.)

Read the petition. Assuming it's accurate, I cannot fathom how the judge issued the TRO. The WI Supreme Court, according to the two cases cited and discussed in the petition, has specifically prohibited WI courts from ordering the Secretary of State to NOT publish a bill. Per the Supreme Court, the courts cannot begin their review of a law until AFTER it has been published by the Secretary of State. (Before that time, it's not a law -- it's still a bill.)

The Supreme Court also instructed WI courts that courts should NEVER review whether a bill was passed by following the appropriate rules and statutes. A court's ONLY proper area of review is whether the legislature met the minimum standards for passing the bill as contained in WI's constitution. Beyond the constitutional requirements, the courts must NOT go.

So, how does a trial court issue a TRO prohibiting the Secretary of State from publishing the bill in order to allow the court time to review whether the bill was passed in violation of the open meetings statute? The Supreme Court has already ruled that a trial court CANNOT prohibit the Secretary of State from publishing a bill -- for any reason. And, the Supreme Court has already ruled that the passage of a bill in violation of a statute cannot serve to invalidate the law -- only a constitutional defect may invalidate a law.

Having read the DOJ's petition, I must say this isn't even a close call. Assuming the petition accurately presented the WI Supreme Court precedents, the trial court woefully exceeded its authority in issuing the TRO.

DKWalser said...

In 2000, two of Scalia's kids worked for law firms that had George W. Bush for a client in Bush v. Gore. How many conservatives here thought Scalia should have recused himself for that "obvious conflict of interest"?

I don't think ether case, the current one involving Judge Sumi or Bush v. Gore, involve any apparent conflicts that should require recusal.

former law student said...

In oral argument, the DOJ raised the issue

*guffaw*

The DoJ left the essential argument out of its brief and expects to sneak it in at oral argument? Would the professor accept a paper two weeks overdue if a student slid it under he door?

Oral argument is for the judge, not the lawyers.

former law student said...

The Supreme Court has already ruled that a trial court CANNOT prohibit the Secretary of State from publishing a bill -- for any reason. And, the Supreme Court has already ruled that the passage of a bill in violation of a statute cannot serve to invalidate the law -- only a constitutional defect may invalidate a law.

All these words, yet no case names.

DKWalser said...

All these words, yet no case names.

Dude, I referred you to the DOJ's petition, which can be found here. The petition's only 39 pages and is well worth the read.

But, since you were unable to find the petition on your own, here are a few quotes taken from the petition:

"In Goodland, 243 Wis. at 468, the court cautioned trial courts:

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 it may not do.

(Emphasis added). Moreover, the Goodland court continued and noted that "no court has jurisdiction to enjoin the legislative process at any point." Id. (enphasis added). It is only "[w]hen the legislative process has been completed, [that] a court may then in a proper case consider whether the power of the legislature has been constitutional1y exercised or whether the law enacted in the exercise of its power is valid. This is fundamental law." Id., 243 Wis. at 469 (emphasis added)."

The petetion also discusses State ex rei. La Follette v. Stitt, 114 Wis. 2d 358,
364-68, 338 N.W.2d 684 (1983):

"After explaining the importance of
comity between the co-equal branches of the government, the Court declared that courts will not "review legislative conduct to ensure the legislature complied with its own procedural rules or statutes in enacting legislation" and "will not intervene to declare the legislation invalid." Id. at
364, 365. See also Milwaukee Journal Sentinel v. Wisconsin Dept. of Admin. 2009 WI 79, paragraph 18, 319 Wis. 2d 439, 768 N.W.2d 700 ("[C]ourts will not intermeddle in purely internal legislative proceedings, even when the proceedings at issue are contained in a statute.")"

DKWalser said...

The DoJ left the essential argument out of its brief and expects to sneak it in at oral argument? Would the professor accept a paper two weeks overdue if a student slid it under he door?

Oral argument is for the judge, not the lawyers.


*Chortle* *Snort*

It doesn't appear that DOJ was given an opportunity to brief the issues. Per the petition, a short meeting was held on the 17th (the same day the DA filed an amended motion and on which the Sec. of State was served) at which the trial court scheduled a hearing for the following morning on the DA's request for the TRO. After brief opening statements, the trial court granted the TRO.

*Ha!*

So, the Sec. of State was served on the 17th and your position is that the Sec. of State's attorney (from the DOJ) was to have fully briefed the case in time for the hearing the following morning? Does that imply that the brief should have been ready by, say, 4:00 the afternoon of the 17th so the good judge might have time to read and consider the arguments raised therein before the hearing on the 18th, or were the DOJ attorneys merely to bring their brief with them to the hearing?

*Knee slap*

former law student said...

DKW, what appears to be the controlling case (not overturned by Stitt is State ex rel. Lynch v. Conta, 71 Wis. 2d 662 (1976). (Legislature subcommittees subject to Open Meetings Law, violators must pay forfeitures.)

Courts have power to investigate if the legislature has exceeded its jurisdiction, In re Falvey (1858), 7 Wis. 528. Courts have power to construe statutes: The legislature limited its power to change their rules of proceedings even when embodied in statutes, by declaring its intent to comply to the fullest extent with the open meetings law, and by making itself liable for violations with forfeitures, in order to preserve representative government by fully informing the electorate, in conformance with article IV, section 10 of the Wisconsin constitution.