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Madison Judge Strikes Down Walker's 'Budget Repair Bill'

1:18 PM, May 26, 2011 • By JOHN MCCORMACK
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The MIlwaukee Journal-Sentinel reports

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 here and the court's findings of fact here.

"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 "impossible or impractical" to wait 24 hours.

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 legislature was convened on March 9.

The open meetings law states: "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."

And the Wisconsin senate and assembly each have a rule stating that during special sessions: "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meeting is not required other than posting on the legislative bulletin board, and a bulletin of committee hearings may not be published [emphasis added]."

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: "The evidence received and testimony heard on March 29 and April 1, 2011, however, revealed no conflicting senate, assembly or joint rule in effect on March 9, 2011, that would have excused compliance with the public notice requirements."

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. She does not address the rule cited by the clerk in a March 9 email. Senate chief clerk Rob Marchant wrote:

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 also concludes that the senate failed to give the full two hours' minimum notice required under the open meetings Law because the notice was placed on the bulletin board shortly after 4:00p.m.

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: the room was set up "to accommodate legislative staff, and more media than usual, which left only 20 seats available for members of the public." Sumi writes that a room that could seat 100 to 120 people could have been used.

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