I would advise those who are tempted to break out the champagne over Judge Sumi's decision enjoining publication of the budget repair bill to put it back in the bucket. There are problems.
First, it is not clear that she had the authority to enjoin publication of a bill. There is some Supreme Court precedent holding that a court may not enjoin publication of a bill because of concerns regarding its constitutionality. The idea is that a law is not enacted until it is published and its constitutionality cannot be determined until it's enactment is complete and someone has been injured by its threatened or actual publication.
Second, while I don't know how Judge Sumi concluded otherwise, there is, as I explained here, serious doubt as to whether the duration of notice provisions of the open meeting law applied here. It seems to me that concluding that it did requires construing a legislative rule in a way that seems to - in conjunction with the open meetings law itself - suggest otherwise.
Third, if it applied, it may well have been complied with. If the legislature can show that twenty four notice was impractical, it may be that the two hour minimum period was complied with or that the notice was so close to two hours so as to raise any violation de minimis.
Fourth, even if the law applied and was not complied with, invalidation of the action taken is not mandatory. It is far from clear that the balance tips in favor of invalidation given the extraordinary circumstances of this bill.
Finally, in assessing all of this, it should be noted that this was not a decision on the merits but the granting of a TRO. It was, in effect, Judge Sumi ordering everything to stop until she could more fully consider the matter.
Not to worry. The State will take an interlocutory appeal to the Wisconsin Supreme Court next week, and Justices Prosser, Gableman, Ziegler, and Roggensack will dissolve the TRO, with the opinion authored by Prosser.
Go ahead. Make my day.
There's plenty of room for tomfoolery in the open meeting law. I remember a situation where an agenda was posted at 4:55 p.m. on Friday for an 8 a.m. Monday meeting. After it was placed in the glass case, they locked the door to the building for the weekend.
Wis. Stat. § 19.97(3) says "Any action taken at a meeting of a governmental body held in violation of this subchapter is voidable, upon action brought by the attorney general or the district attorney of the county wherein the violation occurred. However, any judgment declaring such action void shall not be entered unless the court finds, under the facts of the particular case, that the public interest in the enforcement of this subchapter outweighs any public interest which there may be in sustaining the validity of the action taken."
Sumi's decision is here. I concede I know little about the merits of the issue, but I'm troubled by Sumi's glaring failure to discuss justiciability, State ex rel. La Follette v. Stitt, 114, Wis. 2d 358, 338 N.W.2d 684 (1983). Stitt isn't an Open Meetings case, but it does articulate a general principle that "whether internal operating rules or procedural statutes have been complied with by the legislature in the course of its enactments" is off-limits to judicial scrutiny. The violation of a "procedural" requirement in the enactment of a statute thus isn't reviewable, because it's considered to be a nonjuticiable political question, Baines v. NH Senate President, 152 NH 124 (2005), citing Stitt among other authority.
Sumi should have discussed this principle and explained -- if she could -- why it doesn't apply in an Open Meetings context. Maybe it doesn't, but the reason isn't self-evident, at least to me. Sumi's failure to address this problem at all creates a gaping hole in her analysis, and only adds to a perception that her decision is so thin as to be result-oriented. Decisions like this are likely to increase rather than quell cynicism about the nature and function of judicial review.
"The State will take an interlocutory appeal to the Wisconsin Supreme Court next week, and Justices Prosser ... "
"State ex rel. La Follette v. Stitt ... "
Of note: "Amicus Curiae brief was filed by David Prosser, Jr., Appleton."
Bill: Justiciability is a judge-made doctrine pursuant to which courts will not second-guess the legislature's determination that it has complied with its own internal procedural rules. It is a rule of comity. The Open Meetings Law expressly states that it applies to the Legislature, and, unlike many statutes addressing government procedure, it provides specifically for judicial remedies for violating its terms. The Legislature has, in other words, said that these rights are justiciable, and they are enforceable even as against the Legislature itself. We want courts to be second-guessing the determinations of various legislative bodies as to whether they've complied with this law. It is not comity to the Legislature to decline to do what it has mandated.
Maybe Shark is right that the Open Meetings law contains an exemption that applies here. But the nonjusticiability doctrine doesn't apply.
"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). Anon @ 11:03 doesn't explain why Wisconsin takes a different approach -- nor does Sumi.
Anon doesn't dispute this idea, but says that the Open Meeting law in effect works an exception to nonjusticiability. I gather that Anon thereby refers to sec. 19.97(3). But, among other things, there is sec. 19.87(2), which says that legislative rules trump the Open Meetings law. The matter is simply not as clear-cut as Anon would have it.
Ultimately, though, Anon's point -- defer to an assumed grant of justiciability out of "comity" -- strikes me as self-defeating. That is because comity would also mean deferring to the governmental body's own interpretation of its rules; deference lies at the heart of comity. The legislature's promulgation of a rule -- as appears to be the case -- allowing "special session" meetings such as the challenged one ought, then, to dictate a hands'-off result, whether denominated a matter of comity or non-justiciability.
Sumi, disturbingly I would say, simply assumed that a judge essentially has a right of plenary review. I'm not saying definitively a judge doesn't -- it's well outside my knowledge base -- only that it strikes me as a threshold question that must be addressed. That it wasn't strongly suggests, to me anyway, that the result is highly questionable.
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