Thursday, May 26, 2011

One Reason Why Ozanne is Wrong Decided

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.


Mark said...

As I read the opinion I looked to see how Sumi would handle §19.87(2). I didn't follow the hearings in detail, but based upon my recollections, I wonder if the Republicans were too clever by half.

Sumi notes that no evidence was presented that there were Senate rules in effect that would supercede the general open meetings requirements. Didn't the Republicans claim immunity and not appear at the hearings? Did no one think to introduce the rules of the Senate? It seems to me that if they did, and the procedures of the Committee were in conformance with those rules, it's game over and the decision would be different.

Am I missing something?

Dad29 said...

Apparently, Mark, the Chief Clerk of the Senate (or Ass'y?) testified that rule 93 was not in effect--or something to that effect.

My question is this: does the Clerk's testimony void the reality? Seems to me that Rule 93 is 'effective' no matter the opinion of the Clerk.

Anonymous said...

The only way to get to the best result, both immediate (July 1 effective date) and a state supreme court decision on the current Act 10 would be to add the provisions to the budget effective for two years or until Act 10 is finally upheld as being properly passed. This would specifically not moot the case and allow the underlying question of the rights of the legislature to be the judge of its own rules to e upheld. Any other path could make the current case moot and prevent the legislature from doing its job in the future. You also have to assume that the replacement will be enjoined as well, and so need to add the provisions to the state budget with an air tight non sever-ability clause that prevents any expenditure of funds for any purpose if any part of the budget bill is enjoined.

Ed Fallone said...

Rick, you are certainly correct that Judge Sumi's opinion misstates the effect of the Milwaukee Journal-Sentinel opinion on the legislative act in question. That misstatement is beside the point, since she correctly cites to the key holding of that case: the circuit courts have jurisdiction to hear challenges to legislative enactments based on the claim that those enactments violate the dictates of the Wisconsin Constitution. That's the whole significance of the Milwaukee Journal-Sentinel case. In Zimmerman, many moons ago, the Supreme Court had cast doubt on the idea that there was such a thing as an unconstitutional bill. The enactment of the Open Meetings Law, and the explicit connection of its procedures to the Wisconsin Constitution's open meeting command, changed the constitutional and statutory landscape that had existed when Zimmerman was decided. The Milwaukee Journal-Sentinel case acknowledged this, and it is this part of the holding that Judge Sumi relies upon. In misstating the the practical effect of the Milwaukee Journal-Sentinel holding on the legislative enactment in that case, Judge Sumi is guilty of imprecise language. However, that regretable mistake has zero consequence for the logic of the opinion.

illusory tenant said...

So now you're counting on the Supreme Court to legislate from the bench in order to absolve your boys (among whom is a very recent client) of breaking the law and violating the constitution. This is rich.

And "One Reason Why Ozanne is Wrong Decided"? Please think of the alumni. You're a professor.

Rick Esenberg said...

But the problem, Ed, is that she does not find a constitutional violation nor could she. If - as everyone concedes - the legislature could exempt itself from the particular notice requirements of the Open Meetings law by the simple expedience of adopting an internal rule, then those requirements cannot be constitutional. In fact, on p. 10 of her opinion, she concedes that the legislature has "chosen" to be bound by the Open Meetings law. Constitutional commands are, of course, mandatory and that concession puts this case in Stitt's wheelhouse (a case, by the way, that she also factually mischaracterizes.)

Goodland and Zimmerman are still good law but they wouldn't be pertinent to a claim that an enacted law was passed in an unconstitutional fashion. They have to do with interference in the legislative process before it results in an enacted law that can be then be subject to constitutional scrutiny and statutory interpretaton. That's why, in my mind, the publication and invalidation issues are seperate.

If she had or could find that enactment of the open meetings law "violated the dictates of the constitution," we'd be having a different conversation. But she could not and she did not.

William Tyroler said...

But the problem, Ed, is that she does not find a constitutional violation nor could she. If - as everyone concedes - the legislature could exempt itself from the particular notice requirements of the Open Meetings law by the simple expedience of adopting an internal rule, then those requirements cannot be constitutional.

“Courts throughout the country have found that whether a legislature has violated the procedures of a state right-to-know law is not justiciable," Hughes v. Sup. Ct., 876 A.2d 736 (N.H. 2005). Justiciability, Hughes indicates, turns on whether the OML is "constitutionally mandated." The question thus devolves to whether the relevant constitutional provision "requires the legislature to adopt particular internal legislative procedures to protect the public's right of access to public proceedings." Art. IV sec. 10 says, "The doors of each house shall be kept open except when the public welfare shall require secrecy." Does that provision require particular legislative procedures, etc.? I don't think so. More importantly, I don't think Sumi showed that it does,

illusory tenant said...

Sumi showed § 19.81(3), which shows that it does.

illusory tenant said...

So in other words, Prof. Rick, Goodland teaches us that the Open Meetings Law itself is unconstitutional, isn't that what you are saying ultimately?

Ed Fallone said...

William, the Hughes opinion distinguishes the situation of the New Hampshire Right to Know law from the situation where the state law is connected to a specific requirement located in the state constitution. I agree that a stand-alone statute that creates an internal rule of procedure can probably be ignored by the legislature. But the Hughes opinion recognizes that the justiciablity question might be different when the statute in question implements a specific constitutional command (and especially a command that is more than merely aspirational, such as Wisconsin's quite specific direction that the "doors" of the legislature be kept open). The Hughes opinion goes on to hold that the separate question of whether legislative procedures violate the state constitution itself DOES present a justiciable question. This part of the opinion seems contrary to Rick's argument that Judge Sumi lacks the authority to consider whether the actions of the Conference Committee violate the Wisconsin Constitution. Nothing in the Wisconsin Open Meetings law is a license for the legislature to ignore the State Constitution.

William Tyroler said...

the justiciablity question might be different when the statute in question implements a specific constitutional command

Fair enough, and it makes the question whether (in the wording of Stitt), application of the OML to all legislative proceedings is "constitutionally mandated." Ed and Tom Foley cite Art. IV sec. 10. But Art IV sec. 8's reservation of legislative right to determine its own rules ("Each house may determine the rules of its own proceedings"), seems to me to support a decent argument in favor of nonjusticiability. If nothing else, a certain amount of tension is created (which section is narrower, therefore controlling?), which I don't think Sumi's opinion resolved.

Tom Foley also points to sec. 19.81, which references Art, IV sec. 10, but if the question is whether the statute is "mandated" by the Article, then that is something else. Hughes ruled the same sort of issue nonjusticiable, because Articles "of the New Hampshire Constitution contain textually demonstrable commitments to the House and Senate to adopt their own 'rules of proceedings.'" Same can be argued for Wisconsin.

Let me put it a bit differently. I don't think a majority conclusion of nonjusticiability would be unreasonable, (Are there at least 4 votes in favor of that conclusion? I'd guess so, and would be interested to hear someone else's guess.) Too bad the issue has become so politicized, because I think it presents an awfully delicate problem, which is whether the judiciary can, let alone should, immerse itself so deeply in the legislative process. On the other hand, if I understand correctly that the budget must be passed by 6/30, then it could well be that we won't get a ruling before the clock runs out, so we may never find out how the votes lined up.

Dad29 said...

"The doors of each house shall be kept open except when the public welfare shall require secrecy."

To my common mind, that sentence leaves a lot of room of legislative rule-making. It certainly does NOT mandate 2 hours' notice.

Since there's a fair amount of room in that sentence, one suspects that the circuit court is merely arrogant, not justified.

illusory tenant said...

"[Stitt is] a case, by the way, that she also factually mischaracterizes."

How so? Stitt is not your friend, practically regardless of how the judge characterizes it.

(By the way, to whomever may be reading this, Mr. Tyroler is one of the smartest lawyers in the State and would make an outstanding Supreme Court justice. Seriously. But I bet he wouldn't dream of enduring the electoral process that might get him there. And that's a damn shame.)

Ed Fallone said...

I think that "a delicate problem" captures the situation. I spoke out on this whole mess because I felt strongly that the arguments in favor of "publication" were fairly weak. On the other hand, the question of the justiciability of an Open Meetings violation is, to my mind, something about which reasonable minds can disagree. In any event, if this truly is a delicate question then why do some (not William) feel free to direct abuse and invective towards Judge Sumi for adopting one of two reasonable interpretations?