Wednesday, June 15, 2011

Inital Thoughts on Yesterday's Decision

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.


Anonymous said...

Another clear legal ruling in today's court system.

So was it the law when the LRB published it or is it only the law after Doug gets around to doing his job? If everything that Judge Sumi did was vacated, why would it not have been the law as of March?

steveegg said...

Again I ask where in the opinion, other than in the dissents, is there any mention or claim that the majority considers the act currently not in effect?

Steve Austin said...

This LaFollette thing is a mess.

As to what anonymous said, if the Court vacated everything Sumi did, then the law went into effect in March didn't it? What other case law is out there where a law was enjoined after publication? Was the law then retroactively in effect during the period from the injunction until the period where a higher court removed the injuntion?

The other question goes to the 10 days. Some think LaFollette has ten days now to "publish". On what point in the ten day clock after passage did Sumi issue the injunction? Day 8? Is it possible that clock is starting from that point and LaFollette has 2 or 3 days to publish?

Also, since publication is partly a legislative creation, the GOP should use this next two weeks to amend the statutes to make clear that the LRB can publish and not the SOS.

George Mitchell said...

LaFollette's apparent decision to stall for another couple weeks means the Legislature needs to clean up the law regarding "publication" "effective date."

steveegg said...

Steve, the initial TRO was issued on March 18, 7 days (or if you prefer, 5 business days) prior to the initial March 25 desigated date of publication.

I can say that, a few minutes ago, I have sent a request to the Department of Administration to have them seek a clarification from the Supreme Court on this issue, with some non-lawyer advice on the date of publication being March 25. What they do with that, I don't know.

steveegg said...

George, and by "clear up", I presume you mean "remove from the purview of the Secretary of State".

Good call.

Floyd McFloyd said...

Ultimately doesn't matter what the effective date might be. The state said during the testimony and now Sec Huebsch has reaffirmed that it will not be applied retroactively.

george Mitchell said...


The confusion reqarding publication and effective dates has bordered on the absurd. Your idea of getting the Secty of State out of the picture would be a good start.

Anonymous said...

Rather than publish it in the 'newspaper of record' the SOS should have the bill printed on parchment and have town criers appointed to ride by horseback to Wisconsin villages and towns to declare it.


george mitchell said...


In your spare time, please comment on the lawsuit filed in federal court today. Thank you.

Anonymous said...

This decision is the Bush v. Gore of Wisconsin jurisprudence. Continue your sophistry and you, too, might get to be a Republican justice of the state Supreme Court someday.

LawGirl said...

As to the effective date of the law, Wis. Stats. Sec. 991.11 states that "every act ... shall take effect on the day after its date of publication as designated under [Section] 35.095 (3)(b)." Sec. 35.095(3)(b) provides that Sec States needs to "designate" a publication date, but says nothing about actually publishing it.

After the bill was passed by both houses and signed by the Governor, LaFollette designated March 25 as the publication date. This fulfilled his duty under § 35.095(3)(b).

There is no authority for the Secretary to withdraw his designation of a publication date or to instruct the Bureau to violate § 35.095(3)(a), which requires that the Legislative Reference Bureau publish every act "within 10 working days after its date of enactment," which it did.

Given that the Supreme Court's decision was very specific that ALL of Sumi's orders were "void ab initio," there is no basis to hold that the law is not now in effect. But, the Supreme Court did not say this. Unfortunately, the Court did not address this directly at all. Instead, it stated, "there remain no impediments to the Secretary of State fulfilling his obligations under § 14.38(10)(c)." It doesn't mention 35.095(3)(b).

I like the opinion as precedent. It is clear, direct, and unambiguous about the role of the courts in the legislative process. But, because it didn't expressly state that this bill IS now law, it fails to completely resolve the immediate issues at hand, which is disappointing.

LawGirl said...

Re: Justice Abrahamson's opinion:

The Court’s ruling clearly upholds the principle of separation of powers, which is a constitutional principle, over the knee-jerk politicization of the courts accomplished by Ozanne being allowed to bring this case in the first place.

The politicization is even more evident from Justice Abrahamson's concurring/dissenting opinion. Justice Abrahamson makes clear that she concurs with the majority in these two parts: 1. this is an important issue; and 2. the bill is not yet law because the Secretary of State didn't perform his ministerial duty of publishing it (and, here, they are ALL wrong - see comment above).

Ensuring that her opinion will be in no way as concise as the majority, Justice Abrahamson spills ink patting Sumi on the head for having issued a lengthy opinion, replete with citations to authority (whether the authority was on point another issue).

However, very tellingly, she never says Sumi was right.

Justice Abrahamson's opinion does little more than nit-pick the majority opinion for being too concise, Justice Prosser's concurrence for being longer than the majority opinion and including too much context, and the process of the opinion coming about for being too efficient. I have seen few concurring/dissenting opinions that are as personal, as political, and, frankly, as bitter in tone as Justice Abrahamson's in this case.

Timothy L. Vocke said...

Good analysis, always.

George Mitchell said...

LawGirl makes for good reading.

LawGirl said...

Aw shucks, George. Thanks for the kind words.

Anonymous said...

The effective date means a lot to the other hundreds of units of local government out there. All contracts ratified since 3/25 are potentially invalid, and even if the state is not interested in going back to 3/25, each unit of government could do so.

Rachelle said...

Great comment. I wish you were on the supreme court bench.

Anonymous said...

"The confusion reqarding publication and effective dates has bordered on the absurd."

This entire exercise is beyond absurd. Whatever will the shrills on both sides do with their time now that the circus moved on?

Anonymous said...

Sorry. Don't think its fair to equate jamming a pike in the machine of democracy that the Senators running away with pretty measured responses from the Republicans.

Similarly, the threats, disruption and physical intimidation of the left were an extreme, nearly a dangerous extreme.

Glad the circus is moving on, but the insane clown posse consisted of Democrats.

angryandy said...

Just as the three branches of the government are equal, each session of the legislature is equal to all previous and future sessions. When a session of the legislature begins, it, according to the constitution, establishes is rules. No one session can pass a 'super-rule' (as Kevin St. John called it) that must be imposed on all future sessions. Each session can, if it wishes, start with a blank slate and establish it's own rules.

At first read, the open meetings law appears to impose rules on future session, with the caveat in section 19.87 'allowing' the legislature to override the law by passing rules that supersede it. However isn't it really a back door method of imposing the will of a previous session on future sessions by inserting rules if and where none exist? Inserting them without any vote by the current session.

Isn't that the basic problem here?
Isn't that unconstitutional?
Or am I wrong? :-)

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