Saturday, March 19, 2011

The Sumi Decision: A Closer Look

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.

First, there is an issue as to whether the case is even ripe for decision. In Goodland v. Zimmerman, 243 Wis. 459, 10 N.W.2d 180 (1943), the Supreme Court held that judges may not enjoin the publication of a law on the basis that it is or might be unconstitutional. A bill, in the Court's view, is not enacted until it is published such that publication is part of the legislative process with which courts may not interfere. Unless the Court wants to abandon that precedent, I think that it clearly requires that the restraining order be vacated and the case be remanded with instructions to dismiss.

Of course, the case could be refiled after publication by someone with standing to address its constitutionality. But lay readers should not think that renders this objection meaningless. It implicates concerns for separation of powers, ripeness and standing and courts take these things very seriously and for very good reasons.

Second, the principal argument of the state - as I understand it - is that the open meetings law itself defers to conflicting legislative rules. I laid it out here. Sec. 19.97(2) says that "no provision of the Open Meetings Law 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."

Judge Sumi acknowledges this but then asserts that "neither party has cited any rule that would have overridden the clear provisions of the notice requirement in sec. 19.84." But I am sure that the state did cite Senate Rule 93(2) which provides that, when the Senate is in special session (and it was), "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meeting is not required other than posting on the legislative bulletin board, and a bulletin of committee hearings may not be published." Assembly Rule 93(3) says the same thing.

Well these sure look like rules that override the clear provisions of the notice requirements in sec. 19.84. Why doesn't Judge Sumi think so? We don't know because she didn't say.

There may be ways to reach that conclusion. The conference committee in question was a joint committee and there are separate joint rules. Maybe these mean that the Senate and Assembly rules do not apply. These joint rules do not include a counterpart to Senate Rule 93(2) or Assembly Rule 93(3). If Judge Sumi concluded that only the joint rules are applicable, then maybe the plaintiff is right after all.

But even if she did so conclude (and we don't know whether or why that is so), she wouldn't be home free. These joint rules do include a few rules that might be interpreted to incorporate those rules into the activities of joint committees. For example, Joint Rule 84(2) says that standing and special committees of one or bothy houses may:

(2) Public notice. In compliance with the appropriate senate and assembly rules, hold public hearings and executive sessions and conduct any other committee business on the proposals that have been referred to the committee.


That might be read to incorporate the notice provisions of Senate Rule 93(2) and Assembly Rule 93(3). Joint Rule 27 requires notice of committee meetings in accordance with Joint Rule 75 "if time permits" suggesting yet another standard (and a fairly lenient one) for evaluating the notice provided here. (Rule 75 itself seems to apply to the weekly schedule of meetings.) Joint Rule 10 says that each house will determine its own rules for its proceedings. Does this mean that we look to the notice provisions of each house for the meeting of a conference committee?

Maybe Judge Sumi decided that none of this cuts in favor of the legislature but there is an overlaying problem if she did - one identified Bill Tyroler in a comment to an earlier post. Shouldn't a judge defer to the legislature in interpretation of its own rules? The legislature thinks that it followed its own rules. Leg Counsel apparently agrees. Isn't it proper to defer to that determination? If not, why not?

Even assuming that the open meetings law applies, did the legislature comply? Judge Sumi says that the state gave no reason for not providing twenty four hour notice. Is that right?

And even if it is, why does the balance of equities favor invalidation of the law. Judge Sumi's rationale - that the people "own" the government and nothing can happen in secret - can't be right. That would require invalidation of an official action every time the open meetings law is violated - something that the open meetings law itself does not contemplate. It requires a further balancing of interests which require the consideration of things other than an open meetings violation. She purports to do that but her analsis ultimately reduces to the open meetings violation. Given the terms of the open meetings law itself, that can't be enough.

At first blush, this doesn't seem like a strong case for invalidation. Notice was provided. The meeting - as far as I know - was open to the public. The Democrats were there (Barca) - or if they weren't it was because they were unlawfully boycotting the legislature. My guess is that the public was as well. The measure in question has been the subject of extensive public debate and final action on it was taken with the Capitol crawling with protesters.

If Judge Sumi thinks otherwise, it requires a better explanation that this was things shouldn't happen "in secret."

Of course, this was not a decision on the merits but only the granting of a TRO. Nevertheless, the decision reads as if a violation is clear. It's not.

73 comments:

Free Lunch said...

Clearly Goodland is not on point. The injunction here is because the legislature failed to follow its own rules and the laws of the state. The law itself has nothing to do with whether the legislature can be forced to do this over and follow the rules this time.

If a bill is passed in a way that does not follow the law, it is not law. It is best to enjoin its publication until the legislature chooses to pass the law in the proper manner. The Fitzgeralds have the right, nay the duty to recall the houses to order and vote again while following the law of the state and the rules of the legislature.

How do you think the legislature should be forced to follow its own rules (I don't accept your interpretation that they were following the rules or that those rules conflicted with the 24-hour rule)? Furthermore, wasn't the special session called for a specific budget bill? How do they get to pass a non-budget bill in such a special session?

Rick Esenberg said...

Free

Explain yourself. Goodland involved a claim that the law in question was not properly enacted under the constitution, i.e., the "laws of this state." The plaintiffs alleged, among other things, that the legislature had improperly counted the members voting and had not, therefore, properly overridden the Governor's veto. There is nothing "clear" about Goodland's inapplicability. Maybe we can think of a reason not to apply it here but Judge Sumi failed to even nod in its direction.

George Mitchell said...

"...the legislature failed to follow its own rules and the laws of the state."

Huh?

See Ellen Nowak's excellent piece at SykesWrites. It addresses the kind of fallacious logic advanced by Free Lunch.

30yearProf said...

The judge lives in Madison. She wants to continue to be invited to cocktail parties and to eat in restaurants without some other patrons hissing.

As the OP makes clear, she isn't thinking about law. She's motivated by something else.

Even judges want to be loved by their community.

illusory tenant said...

How does the Shark or Ellen Nowak or whomever know that Assembly Rule 93(3) and Senate Rule 93(2) don't incorporate by reference -- as opposed to supersede -- §19.84(3)? With respect to §19.87(2), which the aforementioned attorneys suggest is dispositive of the instant quandary, it's not in play because there exists no conflict between those rules and §19.84(3).

Both rules of the respective legislative bodies indicate where notices must be posted but not when: neither rule poses any challenge to the statutory requirement that "in no case may the notice be provided less than two hours in advance of the meeting."

Whosoever relies on the rules 93 in the foregoing fashion courts the "absurd result" that Fitz & Co. could have waited until November 6, 2012 to post their meeting notice (so long as it was on the legislative bulletin boards -- how many of them is unclear) because elsewhere in the legislature's rulemaking scheme "notice" is distinguished by "advance notice."

P.S. Mr. Tyroler has taken the more compelling approach (as usual).

Free Lunch said...

What is the point of having laws that require notice if there are no consequences for failing to provide notice?

Let's take a different example. The legislature passes a law that adds a 20% income tax surtax to all who earn more than $125,000. The law itself has no constitutional defect, but the bill was passed without public notice or hearings and the public was barred from all meetings that considered the bill. If, as the appellate brief argues today, no one has the right to ask that the Secretary of State stop the bill from being published then we might think that the right answer would be to enjoin the law immediately from taking effect as the Open Meetings law authorizes, except that the Appellant further claims that this could not happen because there is nothing unconstitutional about the law. We have to ignore any process that violates the law: "At most a conference committee vote could be declared void under the Open Meetings law, but such a declaration by the trial court would not nullify the Act itself."

Why not? How can they pass this particular act without having had the conference committee action? What good is an open meetings law if the Attorney General is willing to defend even the most blatant violation of the law. Who has the right to enforce the terms of the Open Meeting law? Do you think that Van Hollen would be making the same arguments if he were defending a tax increase that ignored the Open Meeting law?

Anonymous said...

To (the appropriately named) Free Lunch: In every courtroom in the land, it is recognized that stating something is "clearly" the case is recognized as a guarantee that it is not. It's blowhard, I-don't-have-a-real-argument-to-make talk.

The conduct of the Madison City government, the Dane County sheriff's department, and the Dane County court in the last month is a disgrace - a campaign of intimidation and nullification - and a good argument for dissolving all of them, and making Dane County a district governed directly by the state legislature, like the District of Columbia. The duly-elected legislature has been overthrown by a putsch of the locals, and they should pay a heavy price for it.

illusory tenant said...

(Uh oh, I see from the links below that Ann Althouse is buying the "Fitz & Co. are unbound by any and all doctrines" argument -- not a good sign.)

illusory tenant said...

Oh dear. And Patrick McIlheran, poor sod.

By the way, "non-fiscal"?

"The publication of this Act will allow the State to save significant money ... " JBVH petition at p. 30

I'd keep that line well away from the AG's reply to Kathleen Falk's brief, if I was him.

Bob said...

I think that every law in which the Open Meetings Act was violated should be voided. Why? I really believe that a lot of legislation passed by the Democrats could be reversed, Wisconsin government could be smaller, and I could be paying less in taxes.

Of course, that's only my guess, but the odds are I'm right!

Free Lunch said...

Civ Pro question time:

Is it proper for a lawyer to appeal a TRO that he hasn't been asked to appeal.

Rick Esenberg said...

Tom

You could say that the notice provision in the rules doesn't go to timing although I don't find that very persuasive. But my criticisms remain. Shouldn't the judge have explained that was her reasoning and then addressed why she was not deferring to the legislature's own determination that the rule does supercede 19.84(3)?

illusory tenant said...

I don't find that very persuasive.

I'm not surprised. But here, clearly, the defendants refer to "notice" in the sense I've taken it above:

Sumi: We're not talking about the legislature enforcing its own rules, we're talking about the legislature obeying a law that gives people public access to government.

Lazar: Correct.

Sumi: It's not an internal rule, it's a vastly external expectation -- [a] right -- that people have under the open meetings law.

Lazar: Absolutely correct. [Momentary discussion of §19.87(2) and the Senate and Assembly rules 93] [W]hen they're in special session, all that is required is a notice on the bulletin board and that is what was done and they are able to drop it down to that two-hour from 24-hour and we would contend in this case that that was met ...

AAG Lazar's "correct" and "absolutely correct" bring me to another reason why JBVH has a big problem, but it's too late to get into that.

As for why Judge Sumi didn't author a more comprehensive decison I can't say, but I bet you a ginger ale she reads rules 93 in the "written or printed announcement" sense, as does, apparently, AAG Lazar.

Larry S. in Texas said...

Thanks for the opportunity to leave a comment. As someone who was a municipal lawyer, and licenses to practice law in both Wisconsin and Texas (the latter state is where I live now), I have the following observations.

Having read the brief of the State, if I were a judge I'd have a hard time finding for the Dane County D.A. on the question of whether a TRO would stick here. Dissolving the TRO would NOT affect the status quo, as the law has already been passed and signed by the Governor, and Secretary LaFollette's duty to publish is strictly mandatory. Further, the courts would still have the opportunity to grant appropriate relief on the merits by voiding the law (since it is only a law that can be held invalid, not a bill), as the Open Meetings Act grants that right of action to the D.A. or the Attorney General.

As such, I would dissolve the TRO and remand to the trial court for a hearing on the various legal issues, since I don't agree that all of the legal issues have been properly heard and addressed by the trial court. Although I believe in the end there was no violation of the Open Meetings Act here.

Anonymous said...

As an American living in Europe, I am watching the shenannigans in Wisconsin and other states with amazement. There are some very simple issues which we all agree to, and they are that deficit spending and massive debt are sucking the life out of economies. I see this entire affair as those who would live off the public teat refusing to be accountable to the same pressures which the average Joe in the private sector must confront. Therefore, this Sumi decision is merely a bump in a longer road. That road is revolution, but not as envisioned by the pro-government Left. Rather the revolution is of a productive class in the private sector which WILL simply produce less until the public sector's massive appetite can no longer be assuaged. It is and will remain a non-violent revolution, but one which will topple whole governments. Why? Because when the game is globally seen there is no free lunch forever. Sooner or later some one demands something which will not be brought to the table of those demanding another free lunch. This is revolution, and only the first days of it. Sumi has chosen the wrong side in the long run.

Vocabulary Police said...

No one should ever EVER use the phrase "the public teat" unless with stratospheric levels of sarcasm. Anyone who does immediately and irrevocably loses all credibility with the rest of the human race for the duration of their natural lives.

Now you know.

and btw - I am a municipal lawyer living in Europe, a pedant, and a hyperbolic twit. As a result, my opinions carry more weight than other commenters.

Anonymous said...

It's all about the Supreme Court election in April.
Sumi's action is just a holding pattern to keep the law from being read into law. The Wisconsin Supreme court is currently 4-3 split between Conservative-Liberal judges. In April a hardliner liberal reactionary is being pushed by the unions under the slogan "April 5, keep hope alive, vote Kloppenburg". Kloppenburg is already slated to vote to overturn the bill. This rank political maneuvering on the part of Sumi, the Wisconsin Secretary of State (who is the plaintive in this case) and a Supreme Court candidate does not sit well with the people of Wisconsin.

RWC said...

If a circuit judge has the authority to block publication of a bill passed by the legislature and signed by the governor,regardless of the means taken, then the judiciary will have granted unto itself veto power. This would be akin to the executive removing a sitting judge in the middle of a trial.

The separation of powers is the fundamental basis of our government. This action, politically motivated and without a legal basis strikes at the heart our system of government. The mere fact that we are debating this issue shows how far we have fallen from being a nation of laws.

I truly fear for my children's future. We have totally screwed up thi country.

edward said...

Wow look at the lefties squirm.....weak case by a Judge who appears to have conflict of interest....

The unionists are whinning about procedure and here they are attempting to defend the ultimate violation of procedure of usurping the legislative authority.

Anything to serve the union masters, voters be damned

gutless said...

Could it be that the fix was in?

John Foust said...

Illusory Tenant has a great and detailed follow-up.

As for conflicts of interest, tell us how you'd rewrite the ethics laws for judges. Tell us how you'd apply them and carry out the punishments. Tell us what recent actions of judges and justices should've been chastised by all.

Anonymous said...

RWC--"If a circuit judge has the authority to block publication of a bill passed by the legislature and signed by the governor, regardless of the means taken, then the judiciary will have granted unto itself veto power."


Regardless of the means taken? What, are you Machiavelli? Judges decide whether or not there are violations of a statute. That is the LEGAL BASIS for reviewing a law. This is the checks and balances system at work.

Anonymous said...

First, Mr. Esenberg is pushing an interpretation of the law; i.e., hat no period of notice is required at all; that guts the very meaning of notice and that the AG's office did not assert. So while entertaining in a law-school sort of sense, it really isn't of much relevance to the case that is actually being litigated, where the issues will be (i) 2 v. 24 and (ii) if 2, was there compliance.

Second, I challenge Anonymous to back up his bald assertion that Ms. Kloppenberg is a "hardline liberal reactionary." My guess is there will be no proof and that Anonymous is simply engaging in a "big lie" strategy.

Anonymous said...

What's a hardline liberal reactionary?

I am not a municipal lawyer living in Europe, but I am a pedant and a hyperbolic twit. The Wisconsin Secretary of State may be plaintive, but he's not the plaintiff in this case; he's a defendant. And . . . are teachers, Department of Revenue employees, UW employees -- you know, the folks who discover stem cells, Vitamin D, etc. -- members of the "productive class," or just public-teat-suckers?

And, please, it's "supersede."

Robert Earle said...

Rick - I was wondering if you could expand on the 'conflict' you see between 19.84 and Rule 93.

Couldn't one argue that instead being in conflict, Rule 93 simply describes the mechanism of notice that 19.84 (and Senate Rule 25) call for? Timely notice must be given, and "posting on the legislative bulletin board" is how it is to be delivered.

John Foust said...

Sorry, Robert, not sure the Prof wants to go down that rabbit hole.

Anonymous said...

So, what say you, Professor Eisenberg?

Kim Grimmer said...

I am coming to this quite late. First, I am very impressed by the thoughtfulness of the comments, compared to the tripe I read at Althouse. Second, I think the Goodland case has to be read based on respect for separation of powers and co-equal blah blah. In 1975, when the Legislature passed the OML, it told expressly the courts two things: read this law expansively, and we cede to you the power to overturn our acts by making "voidable " a legislative act where the law is violated. The legislature knocked Goodland off the perch where the professor still finds it.

Anonymous said...

The professor seems to be deep in the books now. I'm guessing he can't quite figure out how there's a notice requirement, if there is no notice requirement. For if there is no temporal notice requirement, what's the point of having the bulletin rule. And if the statutes have a temporal requirement, and the rule supersedes the law (not likely) why does the rule not mention a temporal requirement. Indeed, if the legislature has not time requirement, why is there a rule at all?

And then someone will see their legal bills (you don't think they are fighting this in house, do you?) and we're all going to ask why they didn't just come back and apss it all over.

Willy said...

I was going to give this post the time it seemed to deserve until I cam across this: "...or if they weren't it was because they were unlawfully boycotting the legislature."

It's odd that a law prof. would require better reasoning from a judge yet give no reference to any actual LAW of the State of Wisconsin that the 14 Democrats were in violation of when they left the State. It's like reading Ann Althouse.

Willy said...

GOP in Wisconsin broke the law by dispatching State Troopers when Wisconsin 14 left the state:

http://www.citizensforethics.org/blog/entry/wisconsin-GOP-leaders-knew-using-state-troopers-broke-the-law

chipbennett said...

@Anonymous:
Judges decide whether or not there are violations of a statute. That is the LEGAL BASIS for reviewing a law. This is the checks and balances system at work.

...the germane word here being law.

If you could kindly point to the law being reviewed by the courts here...?

Anonymous said...

From what I can find, it sounds like normally, Senate Rule 93 would supersede the Open Meetings Law since this was a special session (so no notice required). But...the issue appears to be, the Republicans didn't follow the rules of a special session (regarding the items on the agenda needing to be enumerated ahead of time and calling basically a joint conference committee) so the question is, since they violated the special session rules does that make it no longer a special session and therefore subject to the OM law? Would love to hear what you all think.

George said...

-----Judges decide whether or not there are violations of a statute. That is the LEGAL BASIS for reviewing a law. This is the checks and balances system at work. ====

They decide this after a law is published and challenge, not when the legislature has just voted and the ink still is wet.

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