Wednesday, June 15, 2011

Shark on the Air

I will be on Charlie Sykes show at 8:45 to discuss the Supreme Court's decision yesterday. I'll post something later.


Anonymous said...

The manner in which the majority rushed to assert original jurisdiction in this matter, ignoring the usual processes of appellate review, and spat out a hastily put together, poorly written decision, is as unseemly as the way in which the bill was passed by the conference committee.

George Mitchell said...

Rick's comments on Sykes directly address the reason why the Court needed to move as fast as it did. In short, had the court not moved quickly by default it would have validated Sumi's action and forced the Legislature to re-enact a law it already had enacted. A podcast of his interview will be available and is worth listening to.

George Mitchell said...

The Chief Justice's dissent is a reminder of how polluted the atmosphere within the Court has become under her long tenure. While Pat Lucey's legacy is substantial and largely positive, the appointment of Shirley Abrahamson has reshaped the judicial climate in a negative way.

Dad29 said...

The CJ's opinion also underlines Justice Prosser's restraint and self-control when describing her.

steveegg said...

Regarding publication/effectiveness, I didn't see anything in the order itself that addressed whether the act was published or in effect. It was only in the various dissents-in-part that claimed the majority did not see the act as published and in effect. Correct me if I'm wrong, but my non-legally-trained mind has the idea that nothing contained in either a concurrence or a dissent is legally binding in that case.

Indeed, the only mention of the Secretary of State's role in the process in the order itself that addresses Act 10 was that there is no longer any impediment to Doug La Follette to have the Wisconsin State Journal publish the post-publication notice required by section 14.38(10)(c).

Justice Prosser, alone among the Justices, did briefly address parts of the designated date of publication issue in his concurrence, mentioning Secretary of State Doug La Follette's post-TRO attempted rescission of his designation of March 25 (though not the fact that he stated in the rescission the sole reason was the TRO), and the further amended order stating that Act 10 was not published and not in effect. He also did not mention that the Legislative Reference Bureau did publish the bill under section 35.095(3)(a) on March 25, the original designated date of publication and the last date possible under law.

Unless my search-engine-aided understanding of the the part of the Supreme Court order "that all orders and judgments of the Dane County Circuit Court in Case No. 2011CV1244 are vacated and declared to be void ab initio" is mistaken, the legal view of the two orders referenced by Prosser is that they never had legal effect.

Beyond the 10-working-day window La Follette had to designate a date of publication, he had at most one working day after depositing of an act to do so (see Sec. 14.38(10)(a)). Once that day, specifically March 14, passed, with La Follette declaring a date of publication (March 25), he had no statutory authority to further alter that. Given the claimed authority from the TRO was the sole legal reason for his attempt to rescind the previously-declared March 25 publication date on March 18, and that was rendered void ab initio, there is no legal basis for that attempted rescission.