By Peg Lautenschlager, Of Counsel at the law firm of Bauer & Bach, LLC. Ms. Lautenschlager is the former Attorney General of Wisconsin and a former U.S. Attorney.
Dane County Circuit Judge Maryann Sumi's courageous decision last week to stay the publication of Wisconsin Governor Scott Walker's so-called "Budget Repair Bill" is receiving both cheers and jeers in America's heartland. Walker and his legislative cronies, in a late night move that was at the least devious, and likely contrary to the state's strong Open Meetings Law, passed legislation that stripped public employees of meaningful bargaining rights, while aiming to eviscerate public employee unions.
Legislative republicans were stymied in their efforts to pass their anti-union bill, when the fourteen state senate democrats headed south across the border to Illinois. While the Democrats are three votes short of a majority, they comprise 42 percent of the senate. Thus, they were able to deny the Senate Republicans the ability to gather three-fifths of the members to constitute the constitutionally necessary quorum.
The republicans responded last week, with late night "emergency" meeting of a joint legislative conference committee allowed by recently enacted senate rules. The committee voted on party lines to strip the legislation of its fiscal components and leave only the draconian changes to collective bargaining intact. With the fiscal items eliminated, the senate republicans voted 18-1 to pass the governor's amended bill. The next day, the assembly also passed the legislation.
Progressives cried foul at the underhanded methods used to ram the bill through the legislature, on a night when the capitol was virtually closed to the public despite a judge's order requiring it be open. The Wisconsin Open Meetings Law requires meetings be open to the public and their agenda be noticed at least 24 hours in advance. Exceptions are granted only in emergency situations, and even then two hours notice is required. Here, notice was given less than two hours in advance, by posting a sheet of paper on the billboard outside the senate chambers. Given the newly imposed "security" practices in the capitol, the public line for entry was more than two hours long and citizens were barred from entering the area where the post was displayed.
After a short hearing last Friday, Judge Maryann Sumi gave from the bench her decision to put a temporary hold on the publication, and hence enactment, of the bill. Her thoughtful remarks, well covering the law governing temporary injunctions, included the following:
I think relief is essential to preserve the status quo, which is what exists here and now. The bill has passed. But it has not been published.
I think a legitimate question might be asked, how can something so apparently minor - the failure to provide timely notice prior to a meeting that led to the enactment of the 2011 Wisconsin 10 - how can a minor failure of notice really halt this bill in its tracks? And my answer to that is - it's not minor.
It's not a minor detail. And bear with me for a homely analogy. Those few of you who may have seen the Super Bowl know that there was a much-photographed guy with a cheesehead, and it said "owner" on it. And of course, we all know what that refers to, the fact that the Green Bay Packers are publicly owned. It's a heartwarming moment to see that, but in fact, it states that we in Wisconsin own our government. We own it.
And we own it in three ways. We own it by the vote. We own it by the duty to provide open and public access to records, so that the activities of government can be monitored. And we own it in that we are entitled by law to free and open access to governmental meetings, and especially governmental meetings that lead to the resolution of very highly conflicted and controversial matters.
That's our right. And a violation of that right is tantamount to a violation of what is already provided in the Constitution, open doors, open access, and that nothing in this government happens in secret.
Republicans have opted not to take the bill back to the legislature for a revote. Politically, it would be very dangerous. Instead, they have chosen to appeal Sumi's ruling to a Wisconsin appellate court where a three-judge panel has required the District Attorney to file briefs both Tuesday and Wednesday of this week. Through Attorney General JB Van Hollen, the republicans have attacked a number of technical aspects of the DA's complaint and the judge's order. Nonetheless, it seems the best they can do on the merits is to claim that recently passed senate in-house rules of order somehow trump state statute.
Of course, this governor and his legislature all maintain their respect for the "founding fathers." Apparently, they skipped that whole thing about the rule of law ... stay tuned.
[image via markonf1re]