Wednesday, March 30, 2011

Yesterday in Ozanne v. Fitzgerald

So what about Judge Sumi's order yesterday? In today's Journal Sentinel, I am quoted as saying that I was not surprised by the ruling but was critical of it. Both are true.

But the fact that I am surprised is not an ad hominem attack on Judge Sumi, as Tom Foley suggests (before jumping into an ad hominem attack*). In fact, I made clear to Bill Glauber that I was not attacking Judge Sumi's motivation but just criticizing her legal reasoning. He was careful not to imply any such attack. My lack of surprise stems from the fact that, after 30 years of practicing law, I have noticed that judges don't often retreat after taking a position.

But the fact remains that she has yet to address and distinguish Goodland v. Zimmerman. I understand the argument that the Open Meetings law has created, sub silentio, an exception to Goodland. I don't buy it. To say that the legislature is subject to the open meetings law doesn't mean that the normal rule against enjoining publication is inapplicable. Goodland itself involved a claim that the legislature had not complied with a procedural requirement that was binding upon it, i.e., the requirement of a 2/3 vote to override a Governor's veto. It is an old case but, then again, so are a lot of foundational cases. I am unaware of anyone else trying to do what happened here in the 68 years since Goodland.

Mr. Foley assures us - trust him - that the court has properly considered and concluded that apparently controlling Supreme Court precedent is "insignificant." Maybe so, but one would have expected her to tell the public - in the decision explaining her conclusion - why that is the case.

As far as her latest order, it adds little to her last one. She obviously thinks that the LRB was subject to her initial order - presumably because they are, to use the legal term, a "privy" of the Secretary of State. A "privy" is normally someone who acts at the direction of - or in concert with - a party before the court. But the LRB does not act at the direction of the Secretary of State. It's publication duties appear to be independent of those imposed on the Secretary, although they do operate in parallel.

Be that as it may, she has continued to direct her order only to the Secretary of State enjoining him from publication. That's what she did the first time.

What she has not done is enjoin implementation of the law - although she apparently said from the bench that she was doing just that. While she has enjoined the Secretary of State from any further application of Act 10, he has nothing to do with implementing the Act. She has declined to rule on whether the Act is "in effect" - apparently because she wants to take further testimony on that issue.

I am not sure why testimony is necessary on that (it would seem to be a pure question of law with respect to which no factfinding is required or appropriate), but even if she ultimately finds that it is not in effect, she does not have the right parties before it to enjoin implementation. I am doubtful that the LRB is "in privy" with the Secretary of State, but I am sure that the Secretary of Administration (who is appointed by a different constitutional officer) is not.



* Tom says I was a "Republican-for-hire" attorney for Sen. Fitzgerald. I have never met Sen. Fitzgerald and I doubt that he even knows who I am. I was one of the lawyers of record in an Oconto County case in which Sen. Fitzgerald was uninvolved. I did consult with a Madison lawyer regarding the notion of holding the absconding Democratic Senators in contempt and, in that sense, would regard myself as having an attorney-client relationship with the Senate Republicans on that matter. You know about it because I disclosed it here. But I was not paid for any of that work. And, go read Sartre, Tom. He did believe - at least at some points in his often incomprehensible oeuvre - that the proper ends justified the means. But thanks for reading.

40 comments:

Anonymous said...

Rick, I'm a frequent visitor to your site and always appreciate what I consider to be your thoughtful and intelligent analysis of the law.

A flaw (to me, a non-lawyer) in Judge Sumi's two orders in this case is her surprising imprecision and lack of clarity. I don't understand what gives her the right to scold the administration for misunderstanding an entirely misunderstandable order--but I guess being a judge is enough.

On a related, matter I am interested to know whether you think WSEU's actions (reported by MJS today at http://www.jsonline.com/blogs/news/118910229.html) could be considered extortion and, if so, whether a D.A., the Wisconsin attorney general or even the U.S. Justice Department ought to investigate to determine if charges are warranted.

Again, I'm not a lawyer. But this seems like extortion or racketeering--both crimes--to me. I'd appreciate your take on it.

Seth said...

The inclusion of a Date of Publication on the LRB publication links that activity to the Sec of State's publication activity. The LRB should have left the DoP blank on its publication since the Sec of State was enjoined from issuing that date. The DoP is what drives implementation by determining when the act is in effect (per 991.11), thereby the enjoinment of the Sec of State stops the implementation of it, which was the explicitly stated goal of the TRO.

sean s. said...

I have yet to read Goodman, but I wonder whether the distinction is that the statute in Goodman was properly enacted, but arguably unconstitutional, whereas the law in the present matter is probably constitutional but arguably improperly enacted. If legislative procedure and law is not followed, then enjoining it's publication is not the same as enjoining the publication of a properly enacted (but invalid) law.

sean s.

sean s. said...

... to add some clarity to my question; Courts should not interfere in legislative processes, but if the legislature violates the law and does not follow its own processes, then this injunction does not interfere in legislative process but interferes with legislative "malpractice".

sean s.

sean s. said...

... and of course I meant I've not read Goodland v. Zimmerman.

sean s.

illusory tenant said...

As no material fact is in dispute, I grant me summary judgment.

tf

Anonymous said...

Sean that's a fine argument but I think the point made in this and other posts is that the Court in Goodland said they don't see it your way and that's the law.

Anonymous said...

And the circuit court is to properly apply the law to the set of facts presented to it.

Rachelle said...

I am very impressed with your analysis of the goulash that the judge has made of Wisconsin law.

This isn't an area of law I have focused on, but I cannot imagine the rationale for any judge believing that an injunction or TRO can apply to a party not named in the action and, probably, not served.

God help us all if we are supposed to start guessing that we might be enjoined from some activity because of a suit involving other parties.

Judge Sumi should be facing a disciplinary proceeding. She is supposed to be a judge; not a politician or tyrant.

Since the standards were laid down in the disputes surrounding the English Civil War, legislatures--including our own--set and enforce their own rules. The problem fought then, and since, was interference from the executive. Now, apparently, it is from the judiciary.

Judge Sumi needs a new line of work. Someplace where she does not need to actually understand the law and act ethically.

illusory tenant said...

Right here is why I enjoy this blog:

I cannot imagine the rationale for any judge believing that an injunction or TRO can apply to a party not named in the action ...

I believe the correct term to describe the relationship between the secretary of state and the LRB is privity. And in a riotous irony, nobody's arguing it harder than the Fitz/JBVH contingent. Mr. Ozanne's got to be loving that.

Judge Sumi should be facing a disciplinary proceeding. She is supposed to be a judge; not a politician or tyrant. ... Sumi needs a new line of work ... where she does not need to actually understand the law and act ethically.

Thanks kindly for helping prove my point (and for so effectively limning Judge Sumi's remarks in court today).

P.S. Comma, not semicolon.

LawGirl said...

IT says: I believe the correct term to describe the relationship between the secretary of state and the LRB is privity. And in a riotous irony, nobody's arguing it harder than the Fitz/JBVH contingent. Mr. Ozanne's got to be loving that.

And how, exactly, does the LRB have privity with SOS in executing their separate ministerial duties under the statutes?

LawGirl said...
This comment has been removed by the author.
LawGirl said...

Under Goodland, neither the alleged violation of the legislature's internal rules nor a violation of the open meetings law may be used to justify invalidating the law, even after it is effective. Thus, how can an alleged violation of these procedural rules be used to restrain it from being enforced prior to its effective date in order to allow the judge time to determine whether it violated these procedural rules?

illusory tenant said...

And how, exactly, does the LRB have privity with SOS in executing their separate ministerial duties under the statutes?

Ask Fitz Van Walker. Their entire case depends upon "each having a legally recognized interest in the same subject matter."

sean s. said...

LawGirl;

please direct me to the place in Goodland where it says that "neither the alleged violation of the legislature's internal rules nor a violation of the open meetings law may be used to justify invalidating the law, even after it is effective."

sean s.

Dad29 said...

the correct term to describe the relationship between the secretary of state and the LRB is privity

...and he owns them with SUCH A SMALL BUDGET!!

LaFollette for Most Economical Potted Plant!!

illusory tenant said...

Mock all you want, but the AG's purported legal representation of the secretary of state was a key to your beloved regime's comeuppance.

Anonymous said...

Um, LawGirl, I don't think we had the Open Meetings law back in the 1940's, when Goodland was decided.

LawGirl said...

I'd love it if one of those people who thinks this violates the open meetings law could explain to me exactly what the following means (from the open meetings law):

19.87 Legislative meetings. This subchapter shall apply to
all meetings of the senate and assembly and the committees, subcommittees and other subunits thereof, ,except that:
. . . .
(2) No provision of this subchapter 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.


Then, this . . . Senate Rule 93 provides, in pertinent part:

Senate Rule 93 (2)
(2) A 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.

Senate Rule 93 (3)
(3) The daily calendar is in effect immediately upon posting on the legislative bulletin boards. The calendar need not be distributed.


The entire text of SR 93 may be found here: http://nxt.legis.state.wi.us/nxt/gateway.dll?f=templates&fn=default.htm&d=rules&jd=senate%20rules

Rachelle said...

Considering the following parts of the WISCONSIN CODE OF JUDICIAL CONDUCT, an argument could be made that Judge Sumi could, and maybe should, face disciplinary proceedings.

Between her son's apparent involvement in union political matters and the politically charged quality of her endlessly revised and extended decision, there is an appearance of impropriety.

When the Sup Ct vacates her injunction, it may be time to turn on her with a complaint to the Wisconsin Judicial Commission.

SCR 60.04 A judge shall perform the duties of judicial office impartially and diligently.
(b) A judge shall be faithful to the law and maintain professional competence in it. A judge may not be swayed by partisan interests, public clamor or fear of criticism.

SCR 60.03 A judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities.
(2) A judge may not allow family, social, political or other relationships to influence the judge's judicial conduct or judgment.


SCR 60.03 A judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities. (1) A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

illusory tenant said...

Go get 'em, tiger.

MJW said...

The case holding that neither a violation of the legislature's internal rules nor a violation of a statute specifying legislative procedure will be used to invalidate a law isn't Goodland, it's State ex rel. La Follette v. Stitt, 338 N.W.2d 684 (1983): “Unless the claim is that the legislative procedure violated some constitutional provision or right, this court will not, under separation of powers concepts and affording the comity and respect due a co-equal branch of state government, interfere with the conduct of legislative affairs.” In distinguishing Stitt from an earlier case, the Court strongly suggested it would not void legislative action due to a violation of the open meeting law:
"This is consistent with this court’s decision in State ex rel. Lynch v. Conta, 71 Wis. 2d 662, 239 N.W.2d 313 (1976). The issue in that case was whether certain legislators had violated the open meeting law and whether they could be subject to forfeitures for such violations. The case did not present the question of the voidability of legislative actions taken in violation of the open meeting law. We hold that we will not invalidate a legislative action unless the legislative procedures or statute itself constitutes a deprivation of constitutionally guaranteed rights."

Anonymous said...

LawGirl: The Open Meetings law prescribes the length of notice that must be given before a meeting. Senate Rule 93 prescribes the manner in which notice is given. There is no conflict.

MJW said...

The Open Meetings law prescribes the length of notice that must be given before a meeting. Senate Rule 93 prescribes the manner in which notice is given. There is no conflict.
From senate rule 25, it's clear that posting on the bulletin board is public notice. Rule 25(1)(b) and (c) require public notice normally be posted on the bulletin board 24 hours in advance. If rule 93(2) also requires public notice be posted on the bulletin board 24 hours in advance, why did the senate pass a special rule that changed nothing?

Magister said...

From senate rule 25, it's clear that posting on the bulletin board is public notice. Rule 25(1)(b) and (c) require public notice normally be posted on the bulletin board 24 hours in advance. If rule 93(2) also requires public notice be posted on the bulletin board 24 hours in advance, why did the senate pass a special rule that changed nothing?

25(1)(c) says that notice will be posted on the bulletin board; rule 93(2) says no other notice is required (in special session) but says nothing about timing and therefore does not conflict with the open meetings statute 19.84(3).

Why do people keep on about Senate rules for a joint committee meeting?

Dad29 said...

Why do people keep on about Senate rules for a joint committee meeting?

Since the Ass'y has a mirror-rule, the logical inference is that joint committees will operate under those rules.

Not that logic is playing a role here.

Thomas said...

Wisconsin has some strange, strange laws. If the legislature can bind future legislatures, as it apparently has done with the Open Meetings law, then the present legislature should require really extensive notice to remove the law being objected to here. Of course, that wouldn't be enforced, just like this law will never be.

I'd advise people not to invest or do business in Wisconsin, because the quality of governance is so low.

Walter said...

MJW,

I've missed you over at JoM.

As usual, you make good solid points. Also as usual, I've got nothing substantive to add to those points.

I just love the irony that in State ex rel. La Follette v. Stitt, a promising young man named David Prosser filed an amicus brief objecting to the legislation. His position failed to carry the day in preventing the law from taking effect. Today he sits on the WI Supreme Court, where he may be asked to opine on a similar question. (To be fair, he thought the restrictions violated in the earlier cases were constitutional rather than statutory.)

Jon S said...

I wonder if the open meeting law was violated when WI were allowed to unionized? If so would that invalidate WI state workers from collective bargaining? Would it invalidate current contracts? I imagine Judge Sumi would rule differently in this context.

George said...

Here's what I fundamentally do not understand about Sumi's "logic." A committee hearing is NOT A REQUIREMENT for a law to be passed. All that is required is passage through the committee of the whole. Committees, sub-committees, all these do is manage the business of the House and recommend actions to the full meeting of the Legislature--and it is THAT meeting that creates a law.

Magister said...

Since the Ass'y has a mirror-rule, the logical inference is that joint committees will operate under those rules.

The logical inference would be that X rules apply to X committee meetings, for all three values of X. Your approach would require reconciling three sets of rules for joint committees, and probably two for any other committee. And senate rule 25 doesn't seem to have an assembly mirror-rule.

"But Ozanne pointed out the committee involved lawmakers from both the Senate and the Assembly. That meant that special joint rules applied, not rules from a particular house, and nothing in the joint rules address notice of a meeting."
from
http://www.greenbaypressgazette.com/article/20110401/GPG0101/110401054/Legislative-staffer-List-shows-many-turned-away-from-special-meeting-bargaining

Not that logic is playing a role here.

Indeed. It must be very frustrating that the AAG arguing against the open meetings violation so stubbornly refuses the brilliant legal arguments developed here. Logical inference: a closet Democrat, appointed by some Democratic governor? or bad arguments?

MJW said...

Hi Walter,

I still read JoM regularly, but tend not to comment unless it's on a subject that particulary strikes my fancy.

That's very interesting about Prosser's amicus brief in State ex rel. La Follette v. Stitt. I hadn't noticed that. As you mention, his objection to the bill is about the delegation of legislative power, not the procedure by which it was passed.

Another interesting fact is that Chief Justice Abrahamson filed a fairly lengthy dissent in Milwaukee Journal Sentinel v. Department of Administration saying the court should have followed Stitt and not invalidated the law.

MJW said...

Magister,

You are aware, aren't you, that Ozanne is the Dane County DA who brought the open meeting complaint? He's not a closet Democrat -- he's a fill-fledged, self-declared Democrat. I assume you're also aware that on pages 28-29 of the petition to appeal the TRO, the defendants argue that assembly rule 93 and senate rule 93 conflict with the open meeting law, and thus prevent a violation.

MJW said...

George,

That's a very good point. The plaintiffs seem to be relying on a sort of "fruit of the poisonous tree" argument. But that only makes sense if the bill wouldn't have passed if not for the committee meeting. Even if the committee meeting had been required by statute, Stitt unequivocally establishes that the requirement could be ignored.

Anonymous said...

Whatever the law is, why is this taking so long? Seems to me once Sumi has taken testimony re the actual process that occurred during the passage of this bill she has all the information she needs to decide the question of law at hand.

Beyond that...did the AGs office have its B team in yesterday? The hearsay obections were beyond weak (did Lazar even prepare?) And the direct testimony was a joke. Defense counsel basically let the PTF lead every witness with every other question. Why was she making the PTF's attorneys' job so easy?
-JS

Dad29 said...

@Magister: And senate rule 25 doesn't seem to have an assembly mirror-rule

Senate/Ass'y Rule(s) 93 are mirrors, and they are at play here.

Tully said...

Whatever the law is, why is this taking so long? Seems to me once Sumi has taken testimony re the actual process that occurred during the passage of this bill she has all the information she needs to decide the question of law at hand.

Sumi is blatantly stalling. She set the deadline for briefs two months away and has not scheduled hearings. She knows the result she WANTS to reach, but the actual precedents are against her inclinations. She will continue to stretch things out as much as she possibly can if SCOWI does not take it up soon.

Magister said...

@Magister: And senate rule 25 doesn't seem to have an assembly mirror-rule

@Dad29: Senate/Ass'y Rule(s) 93 are mirrors, and they are at play here.

And the original argument was about 25 and 93. But the non-mirror-ness of one provides another reason why they wouldn't be redundant (besides the already noted fact that they are actually different).

Magister said...

You are aware, aren't you, that Ozanne is the Dane County DA who brought the open meeting complaint?

Yes. But I said "the AAG arguing against the open meetings violation" -- i.e., Lazar.

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