Regarding State ex rel: Huebsch v. Circuit Court for Dane County
1. For reasons that I have stated on many occasions, this was not a hard case. Controlling precedent clearly prohibited an injunction against publication of a statute and nothing about the passage of the open meetings law changed that. There was not, as some have suggested, two lines of authority about the impropriety of invalidating an act of the legislature for failure to comply with a procedural review. Stitt controls on that question and nothing about the open meetings law or the Court's decision in Milwaukee Journal Sentinel changes that. The majority was not wrong, as some have suggested, in framing the issue as whether the passage of the open meetings law could amend (by adding to) Art. IV,sec. 10 of the state Constitution. The argument that the law has a "constitutional nexus" or is somehow the implementation of a constitutional provision tees that issue up. If - as everyone seems to agree - Art. IV, sec. 10 does not itself impose any requirements on the legislature that were violated here, then arguing that the legislature is bound by something with a "nexus" - a sort-of-kind-of-but-not-quite-constitutional command is tantamount to a sub silentio amendment of the constitution. Rather than construct a straw house, the majority went directly to an issue that, quite frankly, the District Attorney and Judge Sumi obscured with imprecise language. That issue was at the heart of the matter. I could go on but you get the point.
2. No Justice voted to affirm Judge Sumi. Those who dissented in part wanted to take more time and, in a certain way, that's understandable. Law developing courts of last resort deal with biq questions and are used to act - quite properly - with a certain leisure that facilitates measured and thorough analysis.
But turbulent times can present extraordinary circumstances. To take more time here would have been to decide the case in favor of one party. The other two branches of government would have run out of time. To say that the legislature could just repass the bill and have the Governor resign it is not an answer. Co-equal branches of government are entitled - the people are entitled - to have their constitutional prerogatives respected. It is unfortunate that circumstances required expedited review, but it's not the first time that has happened and it won't be the last.
It certainly is true that the Court normally accepts jurisdiction and then proceeds. But the issues in the case were, by the Court's order, fully briefed and thoroughly argued. (I thought about filing an amicus brief in the case but concluded that there was really nothing more to be said.)
The real question is what would have been better had the Court waited. I'm not sure and I don't see an answer in the writings of the those Justices who dissented in part. I don't know, for example, that access to the entire record below would have made a difference because it's unclear that there are any material factual issues. One quickly gets into legal inside baseball but I think Justice Prosser is right. The case wouldn't have looked any different in the fall.
3. I do not think that criticism of the majority's writings as poorly done is fair at all. I think it is particularly unfair and unfortunate that anyone should suggest that one can somehow infer a "results oriented" approach from the Justices' writing. Personally, I find the majority's writings to be more compelling but I certainly would never impugn the minority's intention because I don't agree with or find fault with their analysis.
4. Doug LaFollette is not at sea in the way that he thinks he is. I think the majority is wrong about the law not being in effect and, if it is not in effect, was wrong in the reason that it gave. Publication in the official state newspaper seems quite clearly not to be the thing that makes it effective. But LaFollette is obligated to publish within ten days of the publication by the LRB which occurred on March 25. What he must now do is arrange for publication as soon as possible.