A Dane County judge has struck down Gov. Scott Walker's legislation repealing most collective bargaining for public employees.
In a 33-page decision issued Thursday, Dane County Circuit Judge Maryann Sumi said she would freeze the legislation because GOP lawmakers on a committee broke the state's open meetings law in passing it March 9.
You can read Sumi's decision and the court's findings of fact
"She doesn’t address the argument that the open meetings law wasn’t violated because of various senate and assembly and joint rules" that exempted the legislature from the law's requirements, says Rick Esenberg, a professor at Marquette University Law School.
Although Judge Sumi is technically a nonpartisan official, she needs to be reelected every 6 years by the voters of Dane County, one of the most liberal and Democratic counties in the nation. Keep that in mind when reading her puzzling ruling.
As for the details of the case: the Wisconsin open meetings law states that 24 hours' notice should be given for public meetings or 2 hours' notice when it is "
The senate chief clerk, a nonpartisan official who advises the senate on parliamentary and legal issues, advised the senate majority leader that no notice was required to be given for the March 9 meeting other than a bulletin board posting because the senate was in special session. The open meetings law does not apply to special sessions, under which
The open meetings law states: "
And the Wisconsin senate and assembly each have a rule stating that during special sessions: "
Sumi does not explain why that rule did not exempt the senate from the open meetings law's requirements. She simply asserts on page 10 of her ruling: "
Sumi asserts again on page 23 that the senate chief clerk "could identify no specific rule in effect" exempting the senate from the open meetings law's usual requirements.
There was some discussion today about the notice provided for the legislature's conference committee. In special session, under Senate Rule 93, no advance notice is required other than posting on the legislative bulletin board. Despite this rule, it was decided to provide a 2 hour notice by posting on the bulletin board. My staff, as a courtesy, emailed a copy of the notice to all legisaltive [sic] offices at 4:10, which gave the impression that the notice may have been slightly less than 2 hours. Either way, the notice appears to have satisfied the requirements of the rules and statutes.
Sumi further concludes the senate violated the open meetings law because the room for the March 9 hearing was too small. Finding of fact 21 states:
Got that? Although the media were present--in greater numbers than usual--broadcasting the meeting live on TV, the absence of 75 people made this meeting secretive and illegal in Sumi's opinion.
So where does the Budget Repair Bill go from here? "The Supreme Court is going to have the ultimate ruling, and they’re still scheduled to hear theissue on June 6," said senate majority leader Scott Fitzgerald in a statement.
But Marquette law professor Rick Esenberg points out that the budget must be passed by the end of June, and it's not clear the supreme court can issue a ruling by that time. If the court doesn't rule quickly enough, says Esenberg, "I think they’re going to have to reenact the law as a matter of necessity."
The legislature could have passed the law again at any point, but legislators have been reluctant to do so for two reasons: (1) they do not want to concede they violated the law and (2) they don't want to endure the massive angry protests that came to Madison this spring.