Patterico's Pontifications

3/18/2011

Breaking: Wisconsin Judge Suspends Collective Bargaining Law

Filed under: General — Aaron Worthing @ 8:21 am



[Guest post by Aaron Worthing; if you have tips, please send them here.  Or by Twitter @AaronWorthing.]

I haven’t seen the opinion, but here is a news story on it:

Dane County Circuit Judge Maryann Sumi issued a temporary restraining order Friday, barring the publication of a controversial new law that would sharply curtail collective bargaining for public employees.

Sumi’s order will prevent Secretary of State Doug La Follette from publishing the law until she can rule on the merits of the case. Dane County Ismael Ozanne is seeking to block the law because he says a legislative committee violated the state’s open meetings law.

Which sounds strange to me.  How can one law be invalidated because it supposedly violated another law?  I don’t know their state laws, but typically the only actual limits on lawmaking authority is found in the state constitution, or federal law.  Any open meetings law would be a legislative rule typically left entirely to the legislature to enforce—or not enforce—as they see fit.

But that is said without seeing the opinion or knowing much about state law.  What is typical might not be the case in this state.  And obviously I can’t say the judge is right or wrong until I at least see the opinion and kick the tires a little.  After all, I have repeatedly pointed out that the quality of reporting on legal issues is nothing less than awful.

[Posted and authored by Aaron Worthing.]

98 Responses to “Breaking: Wisconsin Judge Suspends Collective Bargaining Law”

  1. Yep. Just saw that at Ace’s. I’ve been predicting that. The state level courts have been packed by Doyle the Democrat governor-for the past eight years.

    This would go to the 7th Circuit Court of Appeals-right?

    That Court-I hear from reliable sources is pretty damn Conservative.

    Although, it’s going to take awhile to get there.

    madawaskan (fd190b)

  2. Actually how much packing can you do in eight years-but I’m sure there’s been more than enough Democrat governors in WI.

    madawaskan (fd190b)

  3. Any open meetings law would be a legislative rule typically left entirely to the legislature to enforce—or not enforce—as they see fit

    No, it’s an actual statute. You can’t violate statutes in order to pass another statute.

    From what I’ve read, this isn’t a big bump as far as bumps go. The Wisconsin GOP can merely do what they did before (pass the same no collective bargaining law) but this time comply with the open meetings law.

    Kman (5576bf)

  4. mad

    if you mean the federal courts of appeal, this is a state issue and not likely to involve them.

    but yes, the 7th circuit is pretty conservative. and i think it covers wisconsin, too. a little googling would answer that question.

    Aaron Worthing (e7d72e)

  5. Can’t we explain, in a sincere voice, that it’s a living open-meetings law?…

    Bigfoot (8096f2)

  6. I have a friend that does labor law out in Cali

    That’s his thinking-I didn’t verify w/ the googles -but he’s not perfect-just damn close.

    Anyways-did you see the AG of Wisconsin’s response.

    Option #2 somehow the AG thinks this gives the legislature a chance to-re-pass it.

    madawaskan (fd190b)

  7. Hey, judges can do what they like.

    Nice to see that Teh Stalker is continuing his creepy pattern, though.

    Simon Jester (46d461)

  8. Except that the open meeting law has an exception for Special Sessions. No notification was required beyond posting on the board. The fact that they emailed and waited 2 hrs was mere courtesy.

    Jay (4bbcc9)

  9. This is from JSonline:

    ******

    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.

    **********

    It looks like they are going to appeal rather than the other options Mean discussed.

    I’d prefer taking it back though the legislature…

    madawaskan (fd190b)

  10. This is from JSonline:

    ******

    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.

    **********

    It looks like they are going to appeal rather than the other options Mean discussed.

    I’d prefer taking it back though the legislature…

    madawaskan (fd190b)

  11. No, it’s an actual statute. You can’t violate statutes in order to pass another statute.

    Are you really that ignorant? The validity of legislation is determined by the constitution, not by other statutes.

    Milhouse (ea66e3)

  12. Jay:

    Except that the open meeting law has an exception for Special Sessions.

    I couldn’t find it, but I might have missed it. Care to clarify?

    Kman (5576bf)

  13. Kman not finding something. There is a joke in there, right?

    Simon Jester (46d461)

  14. Milhouse ony dems can do that.

    DohBiden (984d23)

  15. Are you really that ignorant? The validity of legislation is determined by the constitution, not by other statutes.

    Well, the open meetings law spawns from the Wisconsin constitution, where it says, “The doors of each house shall be kept open except when the public welfare shall require secrecy.”

    The Open Meetings Law merely fleshes that out.

    Kman (5576bf)

  16. kman

    like as if you have any idea, kman. but feel free to prove that this is the doctrine in that state. you know, as in getting up off your ass and proving it.

    Aaron Worthing (e7d72e)

  17. Freakin Lawyers… Geez…

    EricPWJohnson (477908)

  18. Here is the money quote from the article:

    [Judge] Sumi said that [Dane County] Ozanne was likely to succeed on the merits.

    OK, so Judge Sumi issued a temporary restraining order but has not heard the case on its merits from both sides, yet is confident that Ozanne will succeed?

    Could this not be considered a prejudical opinion on the part of the judge and grounds for an appeal of any decision she makes if it goes against the state and in favor of the Dane County official? Since when is it OK for judges to make comments on the possible outcome of a case?

    Some one ‘splain to me how her decision, no matter what it is, has not been tainted by her own comments?

    retire05 (63d9af)

  19. I realize it is pointless to answer Kman but, from what he posted of the Wisconsin Open Meetings Law.

    19.83 Meetings of governmental bodies.

    (1) Every meeting of a governmental body shall be preceded by public notice as provided in s. 19.84, and shall be held in open session. At any meeting of a governmental body, all discussion shall be held and all action of any kind, formal or informal, shall be initiated, deliberated upon and acted upon only in open session except as provided in s. 19.85.

    19.85 Exemptions.
    (c) Considering employment, promotion, compensation or performance evaluation data of any public employee over which the governmental body has jurisdiction or exercises responsibility.

    Because this law clearly has to do with the employment of many public employees over which the governmental body has jurisdiction, the session does not have to be an Open Session and doesn’t have to be publically announced beforehand.

    Black-letter law.

    luagha (5cbe06)

  20. Speaking of lawyers…the AG of Wisconsin I’m presuming is a lawyer-going to him and expecting him to recommend re-voting might be a little like going to a surgeon and expecting him to recommend physical therapy.

    I wish the Republicans in the Senate and Assembly would just go for the do-over.

    Perfect timing if they could get together fast enough-the kids are on-Spring Break.

    madawaskan (fd190b)

  21. luagha

    i would love a case citation for the principles you are arguing, if you can find one.

    Aaron Worthing (e7d72e)

  22. 19.85 Exemptions.
    (c) Considering employment, promotion, compensation or performance evaluation data of any public employee over which the governmental body has jurisdiction or exercises responsibility.

    I think that refers to a single public employee, e.g., a meeting to decide whether to promote Dog Catcher Jim Smith to Senior Dog Catcher Jim Smith doesn’t have to be open to the public. (It’s helpful to read the case annotations)

    Kman (5576bf)

  23. “…I think…”

    Hmm. Assumptions, assumptions. Did you go look up anything?

    Didn’t think so.

    Simon Jester (ea2bef)

  24. “…It’s helpful to read…”

    Oh, indeed it is. Which is a bit ironic, given your documented history of producing simians from your backside.

    Simon Jester (ea2bef)

  25. It doesn’t say “any single public employee”.

    It says any employee the body has jurisdiction over, and this does have to do with their compensation.

    I doubt Kman can prove any annotations have precluded decisions regarding multiple employees. Laugha’s right that it’s pointless to reply to him, but I’m really just talking to the rest of you.

    They were fools not to vote on this specific provision before. They are fools not to vote on it again (with as much notice as the left is pretending they require in this case). It’s an easy solution and might I just add that it saves tax dollars to get this out of court by making it moot.

    The idea that Kman has expressed that this was passed in secret is absurd anyway. They had a full debate about this issue, perhaps greater than any Wisconsin has had in 150 years.

    Just give notice right now that they will be voting again on it.

    Dustin (c16eca)

  26. Aaron and Kman, I’m not a lawyer. It merely appears obvious to me. (Then again, the Second Amendment and the US Title code on unorganized militias also seems obvious to me.) So your point on case law governing is good.

    Similarly, that Judge just issued a ‘stay pending ruling.’ She hasn’t even gotten to a ruling yet. I can only speculate that she is looking at things like this and thinking how far she can push it and to what end.

    Kman, where are the case annotation for this law?

    luagha (5cbe06)

  27. Because this law clearly has to do with the employment of many public employees over which the governmental body has jurisdiction, the session does not have to be an Open Session and doesn’t have to be publically announced beforehand.

    I would be surprised if you’re correct. The exemption reads as if it’s directed towards the hiring/firing/etc. of specific individuals.

    For instance, when the Madison City Council meets to approve the salary and benefits of the chief of police…
    But not when the Madison City Council meets to approve a collective bargaining agreement for the entire Madison city police force.

    The validity of legislation is determined by the constitution, not by other statutes.

    It depends on exactly how the Wisconsin law reads. The open meetings law would certainly invalidate an ordinance passed by a city council (for example) at a closed session. It might or might not invalidate a law passed by the legislature itself; or the legislators could possibly insert a clause in the new bill specifically exempting it from the open meetings law, since the open meetings law is a statue and therefore legislature-originated. There is also the special session exemption mentioned by Jay.

    An accurate answer to all this would require probing around Wisconsin specific law (and case law on open meetings laws), and I don’t have the time for that. So I might be wrong. But the idea that the open meetings law invalidates this new law is far from being far fetched, and shouldn’t be dismissed lightly.

    And, as Kman pointed out, if it is a problem that needs fixing, it should be easily fixable. For one thing, the judge has not actually ruled on the merits of the claim–only ordered the Secretary of State not to promulgate the law until the merits have been decided. Judge Sumi may end up saying the open meetings law was not violated, or at least does not invalidate the new law. For another, it’s merely procedural–the legislature could re enact the law without the procedural hiccup and we’d be on our way again. This case is not attacking the substance of the law, only the manner in which it was passed.
    And the fact that there is, at least as of now, no legal attack on the substance of the bill, suggests to me that even the opponents of the law think that attacking the substance is a waste of time.

    Exit question, as Allahpundit would say: doesn’t the judge have a name that is too good to be true for a person in the legal profession?

    kishnevi (2fb3dd)

  28. laugha

    good point. there might not be an opinion yet.

    Aaron Worthing (e7d72e)

  29. Dustin:

    The idea that Kman has expressed that this was passed in secret is absurd anyway. They had a full debate about this issue, perhaps greater than any Wisconsin has had in 150 years.

    First, I never said it was passed in secret.

    Secondly, this is about a violation of the Open Matters Law, not about whether or not this was a “full debate”.

    If you can’t follow the discussion, maybe it would be prudent to educate yourself before you weigh in.

    Luagha:

    Kman, where are the case annotation for this law?

    Follow my link (#12) above. There’s a further link for case annotations… and specific case law.

    Kman (5576bf)

  30. There is some case annotation of the law on the website. Having glanced through it, none of it has to do with multiple persons or aggregations.

    Unfortunately, not indicative of anything.

    luagha (5cbe06)

  31. Here’s a relatively full explanation of the case that the law complies with the open meetings law–
    1) the special sessions exemption mentioned by Jay
    2) the law doesn’t apply to the legislature as long as the legislature is following its usual rules

    kishnevi (2fb3dd)

  32. There is some case annotation of the law on the website. Having glanced through it, none of it has to do with multiple persons or aggregations.

    Which is why I concluded, as did kishnevi (#26) that the exemption applies to meetings regarding the employment, promotion, etc of specific individuals.

    Kman (5576bf)

  33. Comment #30:

    Thanks, kish. Helpful, once again.

    Kman (5576bf)

  34. Evidence of absence is not absence of evidence.

    We have no idea what basis this organization chose their cases on. I would guess, based on their group name, that they chose them to demonstrate how and when documents should be open, and what is likely to happen regarding this law, and what to expect. (Not all the stories are happy ones, that is for sure.)

    And, as has been said, that’s not even getting into the legislative rules of the Wisconsin Senate, which were passed, and upon which no court is likely to, in the end, invalidate a law.

    luagha (5cbe06)

  35. Well, the open meetings law spawns from the Wisconsin constitution, where it says, “The doors of each house shall be kept open except when the public welfare shall require secrecy.”

    The Open Meetings Law merely fleshes that out.

    Comment by Kman

    Kman, you say this, and then you say “First, I never said it was passed in secret. ”

    Of course not. You merely alluded to it in typical cowardly way. You like to drop claims like that because you have absolutely no idea what you’re talking about.

    I’ll ignore your insults.

    Dustin (c16eca)

  36. Kman

    > If you can’t follow the discussion, maybe it would be prudent to educate yourself before you weigh in.

    Wow, if only you followed your own advice.

    Aaron Worthing (e7d72e)

  37. Thanks, kish. Helpful, once again.

    You’re welcome. Although I think if you had actually read the link you would have noticed that it means one of your talking points is wrong and that the other is irrelevant.

    kishnevi (2fb3dd)

  38. The validity of legislation is determined by the constitution, not by other statutes.

    It depends on exactly how the Wisconsin law reads. The open meetings law would certainly invalidate an ordinance passed by a city council (for example) at a closed session. It might or might not invalidate a law passed by the legislature itself

    No, it can’t do that. One needn’t know anything about Wisconsin law to know this; it’s a general constitutional rule that applies to all governments of the form we have. All statutes derive their validity from the constitution, and can only be invalid if they violate the constitution. No previous statute can affect the validity of a subsequent statute. On the contrary, if there is a conflict between statutes and they can’t be read so as to agree then the later one always wins. Only if the rule allegedly violated is provided for in the constitution can legislation passed through that alleged violation be questioned.

    Milhouse (ea66e3)

  39. Although I think if you had actually read the link you would have noticed that it means one of your talking points is wrong and that the other is irrelevant.

    I did read the link. I’m not sure what you think my “talking points” are, but yes, there does appear to be some exemption where there is a conflict between open matters and the senate rule. Conceded.

    Kman (5576bf)

  40. Milhouse:
    not necessarily so.

    If you were correct, the open meetings law would not have needed to provide an exemption for legislation passed according to normal legislative rules–which it does, and which is the reason (as explained by the link I gave in comment 30) that the new labor law was passed in a way that satisfied the open meetings law.

    If you were right, there would be no exemption to be invoked, only the statement of a broad rule that the legislature can do what it wants.

    kishnevi (2fb3dd)

  41. Well it looks like this might be the foundation for Sumi’s reasoning-

    *****
    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.

    JSOnline.com

    madawaskan (fd190b)

  42. Yes mob rule gets you coming and going. I highly doubt anyone will be held accountable for the mob. Democrats have known the beauty of that for awhile.

    madawaskan (fd190b)

  43. If you were correct, the open meetings law would not have needed to provide an exemption for legislation passed according to normal legislative rules

    It doesn’t provide an exemption for legislation. It doesn’t purport to invalidate legislation in the first place, because such a presumption would be absurd on its face, and so it doesn’t need to provide an exemption. It provides an exemption for meetings conducted in accordance with any legislative rule. That would be committee meetings (e.g. the one complained of by the plaintiffs), administrative meetings, party caucuses, or any other meeting that the legislature cared to make a rule about. But none of this has to do with legislation; even if the committee in question had violated the Open Meetings law, that would in no way affect the validity of the statute the legislature passed on the committee’s recommendation. No statute can do such a thing, and this one doesn’t even contemplate the idea.

    Milhouse (ea66e3)

  44. Milhouse, I’ll rephrase what I said above: if you are correct, then why is anyone invoking the exemption to defend the law? Why not simply rely on the broad principle you state?

    Given this is a very tangential issue, I’d suggest we don’t need to bicker about it: we seem to agree that the open meetings law does not invalidate the collective bargaining law. I’m just using a different rationale than you do.

    kishnevi (2fb3dd)

  45. kish

    it is unusual in constitutions for the validity of one statute to be determined by conformity to another. normally that is what a constitution is for.

    but wisconsin might be unusual. who knows?

    Aaron Worthing (e7d72e)

  46. Milhouse, I’ll rephrase what I said above: if you are correct, then why is anyone invoking the exemption to defend the law? Why not simply rely on the broad principle you state?

    That’s a strange sort of question to ask. How am I responsible for what answers others choose to make to a frivolous complaint? Those responsible for the meeting obviously want to show that it was held properly. But whether it was or wasn’t is irrelevant to the validity of the law that ultimately resulted from that meeting. The legislature is entitled to pass any law it pleases, so long as it conforms with the state constitution. It doesn’t need the advice of any committee, and if it chooses to take such advice it makes no difference whether the committee had any right to give that advice.

    Milhouse (ea66e3)

  47. Not sure about Wisconsin, but in Ohio, our open meetings law clearly states that “A resolution, rule, or formal action of any kind is invalid unless adopted in an open meeting of the public body.” There are specific rules about what constitutes notice.

    Theo (49acfa)

  48. it is unusual in constitutions for the validity of one statute to be determined by conformity to another. normally that is what a constitution is for.

    It’s not just unusual, it’s impossible. There would have to be a provision in the constitution for such a thing, which would by definition make it a matter of conformity to the constitution, and we’re back where we started.

    Milhouse (ea66e3)

  49. Not sure about Wisconsin, but in Ohio, our open meetings law clearly states that “A resolution, rule, or formal action of any kind is invalid unless adopted in an open meeting of the public body.” There are specific rules about what constitutes notice.

    Note that it doesn’t list “law”. That’s because it can’t, and if it did it would be of no effect. Statues cannot affect the validity of subsequent statutes.

    Milhouse (ea66e3)

  50. kish:

    On further review, I’m not sure the Weekly Standard reporter has it right.

    While it is true that the law doesn’t apply to the legislature as long as the legislature is following its usual rules, he then cites Senate Rule 93(2) for the basis that 24-hour notice wasn’t required.

    The problem with that analysis is that the meeting wasn’t of the Senate or a Senate committee. It was a Joint committee… and therefore it would be governed by different rules.

    Kman (5576bf)

  51. Ugh-Means is the *assistant* AG. Sorry about that.

    madawaskan (fd190b)

  52. and therefore it would be governed by different rules.
    And can be assumed to have complied with those rules, and therefore it’s a distinction without a difference.

    kishnevi (2fb3dd)

  53. It must have been lawyers, not philosophers, who debated how many angels (or demons) could fit on the head of a pin.

    JD at #48 refers to what was said at the time. I know the Repubs had looked into the issue and thought they had exceeded what was necessary.

    I don’t know and I’m going to be lazy and not look it up, whether this judge was elected or appointed. As stated, if appointed there has been lots of years of Dem govs. to appoint her, and if elected this is Dane county, which includes Madison. The only political question is whether there are more ears of corn or liberals in the county. So if she was elected, we have the same dynamic of the locals trying to dictate to the state.

    I won’t be surprised if this goes on as long or longer as the 2000 Presidential election. The Dems will not give up as long as they have one gasp left. Apparently they realize that not only can’t they win elections if they tell the truth, but they also can’t win elections unless the system is set up in their favor.

    MD in Philly (3d3f72)

  54. Great comments, Milhouse. This seems like a pretty obvious argument, and I think the people opposing you have a very heavy burden to prove this statute can be invalidated by this other statute.

    Just because a judge somewhere is willing to break the laws doesn’t mean she was right.

    Furthermore, notice was provided. Furthermore, there is a broad exception to any measure affecting public employee compensation.

    Sumi better have an amazing explanation, but I suspect she will summarily redefine everything.

    Dustin (c16eca)

  55. MD, Sumi was reelected by the citizens of Madison in 2005. Yes, it seems to me that the locals of Madison are yet again trying to steal democracy from Wisconsin.

    Dustin (c16eca)

  56. The judge was appointed by Tommy Thompson, a Republican…so much for the false info about the Democrats appointing this judge.

    Mary (b8c8f6)

  57. Mary, she was reelected twice in a heavily democrat area.

    Dustin (c16eca)

  58. Dustin, I knew somebody would rise to the occasion to get the facts while I was looking something else up on YouTube.

    MD in Philly (3d3f72)

  59. Also, it’s amazing to me that anyone would say there weren’t special circumstances. As soon as the democrats learned this was coming to a vote, their staffers let protestors take over the capital’s hallways, trying to create anarchy and prevent a vote.

    A few commenters on other sites are saying that Sumi could have been asked to recuse herself over union campaign contributions creating a conflict of interest, but I can’t find anything proving that is really true. Can anyone help me?

    Dustin (c16eca)

  60. Hey we oppose abortion so when will the lefty trolls accuse us of being like nicolae ceaulescu who supported abortion in certain cases.

    DohBiden (984d23)

  61. Hey we oppose abortion so when will the lefty trolls accuse us of being like nicolae ceaulescu who supported abortion in certain cases.

    DohBiden (984d23)

  62. We’ve also seen Madison’s police officers show tremendous bias in their duties, too. That whole town is really twisted, apparently.

    No surprise that many Madison officials will do everything they can, regardless of the fairness of it. Hell, they denied quorum because they didn’t agree with the citizen’s vote.

    Dustin (c16eca)

  63. Dustin–one of the first things I learned in law school is that the obvious argument is usually wrong. Or at the very least, has to deal with some sometimes non-obvious but legitimate counterarguments before you can say it is right.

    Despite what Milhouse says, it is possible for an earlier statute to invalidate a later statute, especially when the earlier law deals with the procedure used to pass laws and the later law deals with a completely different substantive issue. At the very least, the later statute will always be interpreted in a way that will not conflict with the earlier statute, if at all possible, and if the later statute does not specifically repeal the earlier law or otherwise directly state it does not apply.

    The question is, did the procedures used to pass the law comply with the open meetings law or otherwise qualify for one or more of the exemptions? For a precise answer, I would need to review the texts of the open meetings law, the new law, and pertinent case law, and I don’t have the time for that. I think the special session exemption covers Walker’s law, so I don’t think the issue needs to be answered at any deeper level.

    kishnevi (2fb3dd)

  64. Shouldn’t it be the other way around? If two statutes conflict, shouldn’t the recent one control?

    but note Milhouse’s analysis of what, specifically, this timing rule controls. I think it’s clear that it is not meant to prevent the legislature from passing non-fiscal bills in special circumstances.

    Anyway, you agree with that.

    Dustin (c16eca)

  65. Dustin: in general I’d say that if two statutes conflict, the recent one controls. But that’s if they conflict as to substance.

    The allegation here is that the second one was passed in violation of the first one’s procedural rules. That’s a little bit different. There I would expect the second one to be void, as otherwise the first one is meaningless.

    That said, it’s not clear to me as a general matter that the legislature can bind future legislatures in this fashion.

    aphrael (e0cdc9)

  66. Aphrael, I should have been more clear instead of glib on that point. You and Kishnevi have a good point as to the potential for a law to create procedural rules, but even then, that seems like a circumvention of the constitutional amendment process if it can void later laws.

    But in this case, the law itself is difficult to read in a way that doesn’t permit nonfiscal matters to be passed in a special circumstance such as the one Wisconsin’s legislature found.

    I am not impressed with the partisans in Madison and perhaps it is unfair to Sumi that I just don’t have a lot of faith in an elected just in Madison.

    Dustin (c16eca)

  67. Thanks to massive japanese government incompetence the nuclear reactors may meltdown.

    MichaelJacksonsDoppleganger (984d23)

  68. Damn sockpuppet.

    DohBiden (984d23)

  69. Damn sockpuppet.

    DohBiden (984d23)

  70. 19.81(3)(3) In conformance with article IV, section 10, of the constitution, which states that the doors of each house shall remain open, except when the public welfare requires secrecy, it is declared to be the intent of the legislature to comply to the fullest extent with this subchapter.

    This would seem to me to indicate that the OML is not binding on the Legislature, except that the legislature doors must be open. And given the insurrection, even that part is iffy.

    Kevin M (73dcc9)

  71. Not sure about Wisconsin, but in Ohio, our open meetings law clearly states that “A resolution, rule, or formal action of any kind is invalid unless adopted in an open meeting of the public body.” There are specific rules about what constitutes notice.

    “Note that it doesn’t list “law”. That’s because it can’t, and if it did it would be of no effect. Statues cannot affect the validity of subsequent statutes.”

    The way the law is interpreted here in Ohio, at least since I got admitted to the bar in 1984, is that the “action”, ie, the vote to authorize something, is void if it takes place at a meeting that did not meet the requirements of the Sunshine Law. That means that if the vote was void, the public body did not have the authority to do what it did, thus, the statute is invalid. I’m not saying that’s what happened in Wisconsin, only trying to show how it might be interpreted.

    Theo (925092)

  72. Dustin: generally speaking, a legislature never has the power to divest itself and subsequent legislatures of legislative power in a binding fashion.

    But legislatures generally abide by their own procedural rules, even though they’re basically only binding by customary agreement.

    aphrael (e0cdc9)

  73. but even then, that seems like a circumvention of the constitutional amendment process if it can void later laws.

    Except it’s not. The legislature itself can always amend or repeal the Open Meetings Law, unlike the constitution; and the Wisconsin law apparently accepts any law passed according to the regular parliamentary rules and procedures of the legislature as automatically complying with the Open Meetings Law. The legislature might also specifically exempt a particular law from the ambit of the Open Meetings Law–that would be a direct instance of Milhouse’s general rule coming into play.

    kishnevi (a6ffde)

  74. Has there ever been a federal law voided because the rules of order were not (allegedly) followed? Pretty sure the courts bail on political questions of that sort.

    Kevin M (73dcc9)

  75. ——On further review, I’m not sure the Weekly Standard reporter has it right. —-

    He doesn’t have to get it right. We’ve all seen the quote from the Wisconsin Senate Clerk. The Clerk advised the Senate leaders on proper procedure and he says that they adhered to the letter of the law.

    red (7b5f67)

  76. BTW the conference committee was TELEVISED. Hundreds of thousands of Wisconsinites saw the bill passed by the conference committee. That is where the Democratic hack started the mean about open meetings. Hundreds of thousands of us saw the Senate follow that joint conference vote with that houses vote.

    Just so everyone knows, it was pretty )$($*##*@** open.

    red (7b5f67)

  77. My comment double posted again i guess i must be in moderation.

    DohBiden (984d23)

  78. i need to find out more about this, i will be back

    john (79918e)

  79. It is obvious that WI is in open rebellion, and that only the insertion of the 101st Airborne will allow lawful activity to resume once the ringleaders and their sycophants are in custody.

    AD-RtR/OS! (442927)

  80. Please note item 6 of this section 19.84 of the Wisconsin open meeting law

    19.84 Public notice.
    (1) Public notice of all meetings of a governmental body shall be given in the following manner:
    (a) As required by any other statutes; and (b) By communication from the chief presiding officer of a governmental body or such person’s designee to the public, to those news media who have filed a written request for such notice, and to the official newspaper designated under ss. 985.04, 985.05 and 985.06 or, if none exists, to a news medium likely to give notice in the area.
    (2) Every public notice of a meeting of a governmental body shall set forth the time, date, place and subject matter of the meeting, including that intended for consideration at any contemplated closed session, in such form as is reasonably likely to apprise members of the public and the news media thereof. The public notice of a meeting of a governmental body may provide for a period of public comment, during which the body may receive information from members of the public.
    (3) 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.
    (4) Separate public notice shall be given for each meeting of a governmental body at a time and date reasonably proximate to the time and date of the meeting.
    (5) Departments and their subunits in any university of Wisconsin system institution or campus and a nonprofit corporation operating the Olympic ice training center under s. 42.11 (3) are exempt from the requirements of subs. (1) to (4) but shall provide meeting notice which is reasonably likely to apprise interested persons, and news media who have filed written requests for such notice.
    (6) Notwithstanding the requirements of s. 19.83 and the requirements of this section, a governmental body which is a formally constituted subunit of a parent governmental body may conduct a meeting without public notice as required by this section during a lawful meeting of the parent governmental body, during a recess in such meeting or immediately after such meeting for the purpose of discussing or acting upon a matter which was the subject of that meeting of the parent governmental body. The presiding officer of the parent governmental body shall publicly announce the time, place and subject matter of the meeting of the subunit in advance at the meeting of the parent body.

    The committee was a duly constituted subunit of both the Assembly and the Senate and as such does not require any notice whatsoever

    RonaldH (9d8cd6)

  81. Rules of order are not in the same league as a statute like the Open Meetings Law, of which, as far as I know, there’s no federal equivalent. Each house of Congress decides its own rules of order.

    Probably the closest equivalent in Federal law would be the requirement that all revenue raising bills originate in the House. You may remember this requirement played a role in the insanity surrounding the passage of Obamacare. And that is constitutional, not statutory, and I don’t know off hand of any instance where a court cited it for the purpose of voiding a law.

    kishnevi (b40a74)

  82. (sorry. comment 82 was in response to comment 75)

    kishnevi (b40a74)

  83. #72

    The way the law is interpreted here in Ohio, at least since I got admitted to the bar in 1984, is that the “action”, ie, the vote to authorize something, is void if it takes place at a meeting that did not meet the requirements of the Sunshine Law. That means that if the vote was void, the public body did not have the authority to do what it did, thus, the statute is invalid

    Talk about utterly missing the point. The list you quoted from does not include “law”, and it does not include it for the very good reason that this provision cannot apply to a law. Laws are made by the legislature, and no statute can possibly invalidate a subsequently-enacted statute so long, of course, as the second statute was enacted in accordance with the constitution.

    Milhouse (ea66e3)

  84. #66:

    Dustin: in general I’d say that if two statutes conflict, the recent one controls. But that’s if they conflict as to substance.

    The allegation here is that the second one was passed in violation of the first one’s procedural rules. That’s a little bit different. There I would expect the second one to be void, as otherwise the first one is meaningless.

    And your way the second one is meaningless, which is obviously impossible. To the extent that the two statutes can be read so as not to contradict each other, they must be; but to the extent that they cannot, the later statute always prevails. If necessary, a “notwithstanding the earlier law” clause can be read in to the later law, so as to preserve the earlier law for all other purposes.

    Milhouse (ea66e3)

  85. re: #81 — as I understand it, the suit alleges that the WOMA applies because the Senate failed to properly follow Joint Rule #3, so therefore the legislative exemption is invalid and thus WOMA should apply. NOT saying that’s the case, just that it’s the claimed basis for the complaint.

    Interesting info on Sumi’s family.

    http://amerpundit.com/2011/03/20/judge-who-blocked-wisconsin-union-law-has-union-activist-son/

    Seems her son is a big (paid) union shill.

    Tully (62151d)

  86. #84 “Talk about utterly missing the point. The list you quoted from does not include “law”, and it does not include it for the very good reason that this provision cannot apply to a law. Laws are made by the legislature, and no statute can possibly invalidate a subsequently-enacted statute so long, of course, as the second statute was enacted in accordance with the constitution.”

    The “law” was never validly passed-no need to invalidate.

    Theo (49acfa)

  87. The “law” was never validly passed-no need to invalidate.

    Did both houses of the legislature pass it? Yes or no? If they did, and the governor signed it, then it’s law, unless it contradicts the constitution. It makes no difference whether a committee (which is not the legislature, and thus didn’t pass it) violated the open meetings law.

    Which brings to mind another point: generally legislatures can proceed with hardly anybody there, so long as nobody officially challenges the lack of quorum. The US Congress can regularly be seen doing just this. Only when it’s in one party’s interest to delay proceedings do they bother calling for a quorum, and to do so at least one member from their side must be on the floor. If a law is passed without a quorum, no federal court will entertain a challenge, because it’s entirely a matter for Congress, not for the courts. Is this not the case in Wisconsin? Have Wisconsin courts struck down laws before for lack of a quorum when they were passed? If not, then why did the state senate just meet without a quorum? Without any Democrats present, who would have called for a quorum?

    Milhouse (ea66e3)

  88. #88

    From the Wisconsin Attorney General, in his appeal of the ruling: “No violation of the state’s open-meeting law actually occurred to warrant blockage of the law’s publication. Wisconsin statutes provide that when legislative rules and state statutes conflict, it is the rules that take precedent. Walker’s bill was passed in a special session, and legislative rules allow special-session bills to circumvent the normal 24-hour notice requirement.”

    Theo (49acfa)

  89. Sometimes it seems like people just try to be disingenuous prlcks.

    JD (8d468e)

  90. Okay, I was just reading an excerpt, not the actual appeal. After reading the actual appeal, where the AG cites Wisc. S. Ct. opinion,”Thus, while the Open Meetings Law may apply to the Legislature, legislative acts passed in contravention of the open meetings law may not be voided.” I’m sorry for any confusion regarding Wisconsin law.

    Theo (49acfa)

  91. It’s very interesting to consider Milhouse’s point that this earlier statute cannot prevent the latter as a constitutional issue.

    I just want to add the caveat again that I don’t even think the budget reform bill’s passage broke the earlier statute. I don’t even think it’s a close call. In many directions, from ‘public employee compensation exception’ to ‘special circumstances’ to ‘special session’, this budget reform act’s notification was covered.

    And there’s just no doubt that this was brazen judicial activism, given that the judge is preventing publication instead of conceding she lacks jurisdiction. And the politics of the Wisconsin Supreme Court seem petty and loud, so my only hope is that they feel a need to prove they are actually judges. It’s a dim hope.

    The Wisconsin GOP must pass this law again rather than rolling the dice that they can rely on the judiciary.

    Dustin (c16eca)

  92. No, they wasted enough time and specially money, Judge Sumi, has shown she will bend the law to accomplish her goals. She’ll find another argument
    to checkmate this law,

    narciso (a3a9aa)

  93. Narciso, I think you’re wrong. They as wasting far more money by litigating this issue. They could simply announce another vote on this issue and make the whole damn thing moot.

    If they would find another way to fight this in the courts, at least revoting saves on round. This is too easy an issue to completely fix.

    Also, if Sumi continues to be a shill, it will pay dividends, politically, to her enemies (basically that’s how I construe her as a ‘judge’). Moderates deeply resent judges who play politics.

    Frankly, I don’t see the further objection they can raise, legally. I think they would be presenting it if they had it.

    Dustin (c16eca)

  94. Really, Dustin, she was the one who opposed calling
    the Wisconsin teachers, a strike, and opposed any
    voter eligibility measures in 2008, she’s an apparatchik, plain and simple.

    narciso (a3a9aa)

  95. Yeah, sure. She’s a complete tool.

    So? We can moot this issue, and this issue is costing a lot of litigation and delay.

    It would be nice if she wasn’t reelected, too. That may seem impossible thanks to her Madison electorate, but let her keep finding excuses to shut down the law. Sometimes the best way to fight an extremist is to give them some rope to hang themselves with.

    Dustin (c16eca)

  96. A similar thing happened with SB 1070, did the correction affect the lawsuit against them, no,
    they don’t care about the law.

    narciso (a3a9aa)

  97. Well, either we fight or we resign that the judges are lawless (which in this case, I agree that’s a reasonable take).

    At any rate, it saves cash. They can post this and vote for trivial costs. The Wisconsin Supreme Court is a freaking disaster on its own, and I don’t think we want to know what they will do with this issue.

    If there’s another lawsuit, that was unavoidable.

    We have to keep getting back up. The unions and their allies will do the same. This is a wholesale effort to steal the election results from Wisconsin, and if we can resolve one attempt easily, I think we should.

    Dustin (c16eca)


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