Dane County Circuit Judge Maryann Sumi issued a temporary restraining order Friday, barring the publication of Gov. Scott Walker's law that would sharply curtail collective bargaining for public employees.
Sumi's order will prevent Secretary of State Doug La Follette from publishing the law - and allowing it to take effect - until she can rule on the merits of the case. Dane County District Attorney Ismael Ozanne, a Democrat, is seeking to block the law because he says a legislative committee violated the state's open meetings law in passing the measure, which Walker signed on Friday.
Sumi, who was appointed to the bench by former GOP Gov. Tommy G. Thompson, said Ozanne was likely to succeed on the merits.
"It seems to me the public policy behind effective enforcement of the open meeting law is so strong that it does outweigh the interest, at least at this time, which may exist in favor of sustaining the validity of the (law)," she said.
I've written before that I don't think this lawsuit has a chance of succeeding in the end. Here's why: Senate Chief Clerk Rob Marchant, a non-partisan official who offers legal and parliamentary advice to the senate, wrote in an email to senators the night the bill passed that the vote was legitimate:
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 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.
I thought you might find this information to be useful.
Just in case you don't trust Marchant, let's take a look at what the Open Meetings law actually says. The law states:
19.84 Public notice.
(3) Public notice of every meeting of a governmental body shall be given at least 24 hours prior to the commencement of such meeting unless for good cause such notice is impossible or impractical, in which case shorter notice may be given, but in no case may the notice be provided less than 2 hours in advance of the meeting.
But the law also states:
19.87 Legislative meetings.
(2) No provision of this subchapter which conflicts with a rule of the senate or assembly or joint rule of the legislature shall apply to a meeting conducted in compliance with such rule.
So the Open Meeting law says that the legislature's rules trump the Open Meetings law when the two are in conflict. And the legislature's rules hold that during a special session, under which the legislature had been operating, the only notice required is a posting on a bulletin board in the capitol:
Senate Rule 93 (2) (2) A notice of a committee meeting is not required other than posting on the legislative bulletin board, and a bulletin of committee hearings may not be published.
So the rules and statutes clearly seem to hold that no notice was required other than a bulletin board posting. Republicans did that. And then, as a courtesy and just to be safe, they waited the minimum two hours required by the Open Meetings law when 24 hours' notice is "impossible or impractical." Why might it have been "impractical" to give 24 hours' notice? Watch this YouTube video of senators being harassed by protesters following the vote:
Shortly after abruptly voting to sharply curtail collective bargaining for public employees, senators boarded a Madison city bus and Capitol Police Chief Charles Tubbs stationed himself near the driver to tell him where to go, according to video from the bus released Friday. [...]
Protesters quickly surrounded the bus, banged on it and briefly followed it as it drove away from the Capitol. [...]
Tim Donovan, a spokesman for the Capitol Police, said he could not comment on why the senators were taken away by bus or any other security matters. Republican senators have faced death threats amid the protests, which have been massive but peaceful.
Can you imagine what the security situation would have been if 24 hours' notice had been given to protesters? There's a good chance that protesters would have shut down the capitol and made it physically impossible for senators to get in or out of the building. So, if for some odd reason that the legislature's rules requiring no notice (other than a bulletin board posting) don't apply in this case, it seems that the vote met the Open Meetings law's requirement to provide two hours' minimum notice. I'm curious to find out why Judge Sumi doesn't think so.