In news that will not surprise anyone, a Dane County, WI judge, Maryann Sumi, has placed a restraining order on the publication of the recently passed bill budget repair bill (which was passed only because it wasn’t a budget bill, the irony). This bill is set to revoke most collective bargaining rights of Wisconsin public workers. The claimant argues that the Senate violated Wisconsin State Open Meeting law.
Until published, this bill cannot become law.
At issue would seem to be the separation of powers in Wisconsin. That is to say, just how much power should the court system have to temporarily, or perhaps permanently, ‘veto’ legislation. Some will support a robustly democratic mode of law making, and will believe the restraining order of the Dane County Circuit court undermines this. They will want courts to have very little authority to trump the law making powers of legislatures. But others will want a check on democratic enthusiasm and (or) will want due legislative process to be secured by more than the voluntary comportment of legislators. They may support the courts being able to limit or strike law. This is an important constitutional debate, of importance to citizens, politicians, constitutional lawyers, legal theorists, and political theorists, among others.
Any discussion of the issues in this case would need to look at some particulars first. I think a good list of these would include:
1. In what way is open meeting law legally binding on the Senate’s deliberative procedures.
2. Were the debating and voting procedures used in the Senate and Assembly in fact in violation of Wisconsin open meeting requirements?
3. What, if any, role does (and should) a Wisconsin circuit court judge have in adjudicating this case.
4. What, if any, standing does the claimant have to bring this action.
re. 1.
(From NY Times, March 18, 2011, article by Monica Davey)
“The lawsuit says that Republican legislative leaders not only failed to provide 24 hours’ notice for the conference committee meeting, they even failed to give two hours’ notice — which is permissible under state law if more notice is “impossible or impractical.” “ It would seem then that the Senate’s internal procedures are under the ambit of open meeting requirement law.
re. 2.
It seems likely to me that open meeting law was violated, but open meeting law may be irrelevant.
This may be because internal legislative rules might trump open meeting law. If so, then it is the internal rules which are the only relevant standard, and the current lawsuit would be meritless. But I am not sure on what grounds the Legislature’s internal rules are prioritized over state law. If the Legislature’s rules do have priority, this would seem to respect the idea that the WI Legislature is bound procedurally only by constitutional law and its own accord. Those who support robustly democratic law making would probably approve of the priority of the legislature’s internal rules. This way both law making and law making procedures are democratic. But even those who support some democratic oversight might also support the internal rules if a court can rule on disputes about whether these rules have or have not been followed. If the internal rules are binding, then it may still be possible for a more appropriate law suit to be filed if there is a case to be made that the rules were violated.
re. 3
My view is that if Wisconsin law may have been violated, then it is within the authority of the Wisconsin court system to determine the facts of this. And if they determine that a violation has occurred, then it might be acceptable for the judicature to prevent this law from taking effect altogether. Accordingly, I think a restraining order legitimate at this phase.
If, however, there is only ground for complaint on account of the violation of the Legislature’s rules, then I am not sure if the Wisconsin court system has the legal authority to adjudicate.
(Update, March 21, 2011. Much turns on whether it is appropriate for the court system to prevent law from coming into effect, or from ruling law unconstitutional after law has come into effect. The process by which a bill becomes law is constitutionally defined in Wisconsin, so this may be a significant, and extra-constitutional, coup for court authority. In an article entitled ‘Judge orders temporary halt to collective bargaining law; state will appeal’, the Wisconsin State Journal quotes General J.B. Van Hollen, who notes that there are Supreme Court decisions which indicate that courts cannot stop laws from taking effect if proper procedures are not followed, even if these procedures are law. It’s possible that Van Hollen is stretching his interpretation of precednet, as many procedural rules are not laws. Given this, I’m not certain if the Supreme Court has ruled in truly parallel case. But if he’s right, the move by Judge Sumi will probably be overturned.)
I am also unsure, however, if the Dane County Circuit Court should rule on this. While the alleged act took place within it’s jurisdiction, the matter concerns a fundamental institution of Wisconsin’s government, the legislature, and so it may make more sense for the Wisconsin Supreme Court to hear this case. Especially if this boils down to a question of whether state law or internal rules have priority in legislative decisions – a weighty constitutional question indeed – it is the Supreme Court which should rule. And if internal rules apply, then, as above, I am not sure if the Supreme Court has authority. Certainly if it takes on this authority, this is an interesting constitutional move indeed.
re. 4.
I believe the Dane County district attorney has filed this suit. I can’t imagine that he has standing in a normal sense, as he was not injured. It would seem that Democrat Senators would have a better cause of action. However, since the district attorney will be part of the enforcement of the budget repair law, if it is passed, this may give him some standing to object to a law he believes illegitimate. But I feel very uncertain about this. If we expect courts to oversee legislatures, it seems strange the this can only be undertaken on account of law suits. This has the advantage of limiting when and to what extent courts can effectively trump legislatures – surely important for supporters of democratic law making. But it also causes problems when no one, or no group, is injured in a normal sense. Simply put, many misdeeds are not causes of action under tort law, but many may be alarming if committed by institutions of government.
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