Monday, April 04, 2011

More Reflections on Ozanne

Judge Sumi has once again issued an order without explaining her authority to act. I understand that she probably buys the argument that passage of the open meetings law somehow effected, sub silentio, an exception to the general rule against enjoining publication of the law. The idea is the legislature has made itself subject to the law and, therefore, a law passed in violation of the law might be void.

But that begs the question. In all cases in which an injunction against publication is sought, there was an argument that the legislature had failed to abide by a legal command applicable to it. In Goodland, it was the requirement that a 2/3 vote be obtained to override the Governor's veto. While the open meetings law gives courts the authority to declare actions taken in violation of the law to be void, that doesn't mean that they can enjoin the publication of enacted laws. (Incidentally for those who keep saying that Goodland is too old to be the law, it's rationale was reiterated and endorsed in a 1977 decision of the Court, albeit in a different context.)

The error matters here for at least two reasons. First, if the law has been published, it may be effective. Presumably collective bargaining agreements passed in violation of its terms will be void. But it it has not been published and not yet gone into effect, we can expect to see an argument that agreements passed in the period between its enactment and its delayed publication are effective. If those arguments succeed, the court will have - however unintentionally - created an extended window for evasion of the law. (If this doesn't work, incidentally, it may be because the LRB published the law.)

Second, Judge Sumi is now uncertain how to proceed. I can understand why. What does she do with the immune legislative defendants? When, indeed, will their immunity end? This is apparently one of the reason that, having acted with what may turn out to have been undue haste, the court has now continued a temporary restraining order for at least seven weeks for additional briefing.

For those of you are wondering, we normally don't have problems with legislative immunity in cases seeking the invalidation of a law. The reason is we don't sue the legislators. We sue whoever is charged with implementing the law. That didn't happen here - at least in part - because of the desire to enjoin publication. Error begets error.

But beyond all of this, it really helps when a court explains itself. That generally involves identifying an issue, acknowledging the arguments of counsel and explaining why they do or do not apply. That helps the appellate courts, informs the public and may even lead to better decisionmaking. I am not a judge but I am a referee in discipline cases. More than once, I have modified my recommendation because it turns out that, to use the judicial lexicon, it "wouldn't write."

By way of counterexample, I disagree with Judge Conley's decision in Wisconsin Right to Life v. Brennan and think that the United States Supreme Court will go the other way. But he explained - in some detail - why he ruled the way that he did.

In fairness to Judge Sumi, things have moved fast and state court judges don't have the kind of help that federal judges do. It is also possible for an opinion to follow a ruling. I hope she considers that. She may well find that it just doesn't write.


Anonymous said...

With respect to the legislative immunity, just because the legislators may be entitled to immunity during the session doesn't mean that they have to claim it. Why don't you advise them to disclaim it?

Anonymous said...

Sumi's position on the immunity issue is strange. She permitted the suit to proceed despite the applicability of immunity, but precluded the admissibility of hearsay pursuant to the admission by party opponent exception because of immunity.

Seems contradictory to say the least. -JS

Anonymous said...

Actually in Goodland there were three objections to the bill. Two of them were related and had to do with whether the bill had been constitutionally enacted by the necessary two-thirds vote. The third was a substantive challenge to the constitutionality of the bill. The court, merging the objections into one, said that there's no such thing as an unconstitutional bill. Until it's enacted into law, which doesn't happen until it's published, the court can't rule on its constitutionality. The Goodland rationale, examined more closely, is probably a little different depending on which of the objections one looks at. As to the first two objections, the court was simply saying it would defer to the legislature and not get involved until the legislative action was complete. As to the substantive objection, the court was saying, we can't say this is an unconstitutional law until it's a law.

The Open Meetings law effected, not particularly silently, an exception to the general rule that you can't interfere with legislative action before it is complete. It says government action, including Wisconsin Legislature action, taken in violation of the Open Meetings law is voidable, at the instance of specified governmental parties (the DA or the AG), and only after the court applies a balancing test. Not because the legislative action in question violates the constitution, but because it violates the Open Meetings law (although this in itself was intended, in part, to give teeth to the provision in our constitution that the Legislature be always open to the public when in session). If the court voids the governmental action in question, it has plenary remedial powers. What is voided under the Open Meetings law need not be a "law." It can be any of a series of legislative or quasi-legislative acts. There is absolutely no requirement that the court stay its hand until the legislative action is complete.

In short, there's no such thing as an unconstitutional bill, but there can be such a thing as a bill passed in violation of the Open Meetings law, and the Open Meetings statute gives courts powers, under narrowly prescribed circumstances, to void legislative actions, including passed bills, and to grant remedies including injunctions against further implementation of the voided governmental action.

Anonymous said...

Indeed. "While the open meetings law gives the courts the authority to declare actions taken in violation of the law to be void, that doesn't mean that they can enjoin the publication of enacted laws." That's not what the Open Meetings law says, that's your ipse dixit.

See Wis. Stat. sec. 19.97(3): "Any action taken at a meeting of a governmental body held in violation of this subchapter is voidable . . . ." Sec. 19.97(2): "In addition and supplementary to the remedy provided in s. 19.96, the attorney general or the district attorney may commence an action . . . to obtain such other legal or equitable relief, including but not limited to mandamus, injunction, or declaratory relief, as may be appropriate under the circumstances."

Goodland said there's no such thing as an unconstitutional bill, only an unconstitutional law. The Open Meetings law says any "action" of a governmental body in violation of the statute may be voided, and the court can grant injunctive relief to halt the potential consequences of that action.

Anonymous said...

How is the open meetings law even applicable? 19.87(2) makes clear legislative rules trump open records provisions. Senate Rule 93(2) and Assembly Rule 93(3) both make clear the only notice requirements are posting to legislative bulletin boards. Isn't Sumi wrong on 1. a plain reading of the open meetings law, 2. a plain reading of the publication/enactment requirement statutes, 3. case law forbidding circuit court judges from blocking enactment of legislation? Does anyone know where someone can find links to the pleadings on the case? What am I missing? What business does Ozanne have even bringing this case considering the law on point?

Anonymous said...

Is anyone disputing that the meeting was posted to the relevant bulletin boards two hours ahead of the 6:00 p.m. meeting on the relevant date? I found the summons and complaint and one of the Democrat legislators, Barca I think, raised the point that he had only received notification of the meeting at 4:18 p.m. via e-mail. The Senate and Assembly Rules 93 both indicate the critical notice is the constructive notice given by posting to legislative bulletin boards. If the respondent legislators can produce even one credible witness saying the notices were posted to the bulletin boards, what is the argument that the open meetings law was violated?

Rick Esenberg said...

Anon 6:18 and 7:05

You're making the same mistake as the DA. To say that the open meetings law applies to the legislature and can result in the voiding of a law doesn't mean that you can enjoin publication.

There is really no basis to distinguish between the "voiding" of a law that is unconsitutional and one that is enacted in violation of the open meetings law.

Beyond that, the meeting which enacted Act 10 was not held in violation of the open meetings law. The conference committee meeting was required because of the legislature's own rules. Void the committee's approval of the bill if you like, but that doesn't result in voiding the act since you couldn't void the act if the legislature had refused to even hold the conference committee meeting and had instead had gone straight to votes of the respective houses.

This is why I wish Judge Sumi would sit down and write. It doesn't hang together - it doesn't come close to hanging together - and maybe she'd see that.

Anonymous said...

Anon. 10:01: Senate Rule 93(2) and Assembly Rule 93(3) both go to the manner of notice and say nothing about how much notice is required. They are not inconsistent with the amount of notice required under the Open Meetings law. You fail to explain your publication/enactment requirement statute argument. The case law forbidding circuit courts from enjoining publication of statutes, i.e. Goodland, predates the Open Meetings law and doesn't take into account its provisions, which do allow courts to enjoin further governmental action predicated on acts taken in violation of the Open Meetings law.

Anonymous said...

Professor: You are being willfully obtuse and serving up a second helping of ipse dixit. In your first two paragraphs you continue to refer to the voiding of a "law." When a court exercises its power under Marbury v. Madison to declare what the "law" is, it takes a statute the legislature has enacted, compares it with the constitution, and sees if it squares. Our court in Goodland was saying that, until the bill is enacted into law, the legislative process is incomplete; there's no such thing as an unconstitutional bill.

The Open Meetings law, in contrast, enables courts to interfere with things that aren't yet laws. The basis for distinguishing between judicial review of statutes for their constitutionality and judicial review of government actions under the Open Meetings law is that the former is logically impossible until the matter being reviewed is, in fact, a "statute," while the latter expressly permits judicial review of things that are just "actions taken at a meeting of a governmental body." And, it permits injunctive relief to remedy Open Meetings violations before those violations have matured into laws.

Anonymous said...

Anon. 10:29: In fact Assistant Attorney General Maria Lazar conceded in court that she had no proof that notice was posted on the bulletin board two hours before the hearing.

Rex said...

Interesting comments from all - thanks for taking the time and your civil tone. I would appreciate if someone could explain the current status of the Ozanne case. I read that judge Sumi made a reference to two-month period. What is happening during this time? Can an appeal proceed, or is she drafting a written opinion on the injunction?