It should as no surprise to anyone that I disagree with Judge Sumi's decision in Ozanne v. Fitzgerald for all of the reasons that I have given here and elsewhere. The outcome was predictable but there is at least one part of the opinion that is notably odd.
Judge Sumi writes that "the Supreme Court's decision in Milwaukee Journal Sentinel v. Dept of Administration, 2009 WI 79, answers the precise question raised in this case, whether and under what circumstances a court may bvoid a legislative act for failure to abide by a statutory directive." The case involved legislative ratification of a collective bargaining agreement that, by it terms, prohibited the release of information of certain information regarding public employees that would otherwise be required to be released by the open records law. An existing statutory provision said that the open records law could not be amended by the adoption of a collective bargaining but only be a separately introduced bill. The question was whether adoption of the agreement did in fact modify the open records law so that the subShe goes on to elliptically describe Milwaukee Journal Sentinel saying that, in that case, the Court "went on to invalidate 2003 Wisconsin Act 319 adopting the collective bargaining agreement and amending the Public Records Law."
No, it did not. The collective bargaining agreement remained in force. All the Court did was decided that it did not have the effect of amending - sub silentio - the collective bargaining law. You can read the majority opinion as many times as you want and you will never find any language or mandate that would invalidate all of any part of the act.
A midnight blue friend argues that, well it's as if they did because they refused to give effect to that part of the Act which "purported to" amend the Public Records law, citing (because that's the kind of thing he does), the latin maxim pro tantum brutem fulmen. But the problem in Milwaukee Journal Sentinel was that the Act in question did not purport to amend anything. The argument was made that it did so inferentially by adopting the agreemen. The court concluded that the Act - fully valid - had no such fact, relying on a constitutional requirements for the passage of legislation and reading the statute in question to be, at least for relevant purposes, a legislative statement in compliance with (i.e., restating) those requirements. The Court expressly disavowed any suggestion that it was acting due to a mere failure to comply with a statutel
In fact, the Court's analysis was intitially constitutional. The act was not a bill amending the public records law under Article IV, sec. 17 of the Constitution. Only after it reached that conclusion did it consider 111.92(a)(1) which it interpreted to be consistent with the Constitution, i.e., it did not provide for the amendment of laws in some way other than that specified by the Constitution.
Judge Sumi could have said that the two hour notice provision adopted by the open meetings law was constitutionally mandated, but she did not - for at least two reasons. First, the Dane County District Attorney would seem to lack standing to attack the constitutionality of the collective bargaining bill and the claim would be without merit. The Open Meetings law expressly states that the legislature may exempt itself from its requirements (by the mere adoption of a rule) belying any suggestion that even the legislature that passed the bill thought that it enacted constitutional requirements. (And, of course, even had the enacting legislature thought so, it's view could not bind subsequent legislatures.)
It is quite a stretch to say that a constitutional requirement that the legislature's proceedings be open to the public requires some particular period of notice and room requirements. To say so would be without precedent and would fly in the face of 150 years of practice.
Here's an interesting coda. Chief Justice Abrahamson dissented in Milwaukee Journal Sentinel for reasons that would make it very hard to vote to uphold the circuit court's decision here. It is completely possible that this decision gets one or no votes of support on the state Supreme Court.
There are a host of other problems as well. But it is not clear that this or any of them will ever be reached by the Court. As I understand it, the collective bargaining bill must be in effect for the budget to work. The budget must be passed by the end of June. There may now be no choice but to reenact it.