Friday, March 25, 2011

A Simple Step in Ozanne v. Fitgerald

There is a fairly simple and clearly correct response for the Wisconsin Supreme Court to the Court of Appeals' certification in Ozanne v. Fitzgerald. The Court should unanimously vacate the TRO and remand the case with instructions to dismiss for lack of jurisdiction and without prejudice to the District Attorney's open meetings challenge at such time that the law is published.

As I have said before, there is clear precedent establishing that the challenge to the validity of a law may not be made until it is published. The DA's argument that the open meetings law applies to the legislature does not change that since the case that established the rule also involved a legal command that applied to the legislature, i.e., the requirement that a 2/3 vote be obtained to override the Governor's veto. Particularily where the case does not seek to remedy an ongoing or imminent open meetings violation but to invalidate a law that has already been passed, there seems to be no reason that the normal rule should not apply.

Doing this would have the salutory effect of not forcing the justices to consider the issue in the hothouse of an election. I understand why Kloppenburg supporters might not want this but it seems to be both prudent and legally correct.


Anonymous said...

I agree that is what the Supremes should do, but it won't be unanimous. Indeed, this is precisely what the Ct. of Appeals should have done. It is very disappointing that the appellate court judges decided to punt the issue rather doing their job.

Anonymous said...

Hmm. Three judges of the Court of Appeals, two liberals, one conservative, think that the resolution of this case is neither simple nor obvious. Two cases point one way. Two other cases point the other way. Whether the court has jurisdiction to issue an injunction before publication of the law is one of the difficult questions.

You, of course, know better.

Anonymous said...

The law's been published. So much for that idea.