Days after Wisconsin Gov. Scott Walker (R) signed the
bill that had cast Madison into a state of chaos for weeks, the battle over
public employee union power shifted to the state's courts. And the workers won
the first skirmish, when Dane County Circuit Judge Maryann Sumi issued a
temporary restraining order March 18 barring Secretary of State Doug La
Follette from publishing the law - and thereby allowing it to take effect -
until she rules on an injunction filed against the law by Dane County District
Attorney Ismael Ozanne.
Ozanne, a Democrat, filed that complaint because he and other Democrats believe
the Republican-led legislative committee that approved the bill on March 9,
allowing the Legislature to quickly pass it, violated the state's open records
law by, among other things, failing to provide adequate notice of the
In issuing her order against the law, Sumi, appointed to the bench in 1998 by
Republican Gov. Tommy Thompson, indicated she was inclined to rule in Ozanne's
"The public policy behind effective enforcement of the open meetings 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 (collective bargaining
law)," she said, adding: "We in Wisconsin own our government.... 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."
The state's Attorney General J.B. Van Hollen, a Republican, strongly
"The Legislature and the governor, not a single Dane County Circuit Court
judge, are responsible for the enactment of laws," he said in a statement.
"Decisions of the Supreme Court have made it clear that judges may not
enjoin the secretary of state from publishing an act.... Decisions of the
Supreme Court are equally clear that acts may not be enjoined where the claim
is that a rule of legislative procedure, even one as important as the open
meetings law, has been violated."
The state Appeals Court to which the Republicans promptly appealed the decision
agreed with both sides, citing two previous state Supreme Court decisions that
supported Sumi's ruling and two others that favored Van Hollen's position.
Because of the conflicting precedents, the appeals panel recommended that the
Supreme Court take up the case.
While everyone was waiting for the high court's response and for court hearings
to begin in the Dane County case, the stunning news came that the state's
nonpartisan Legislative Reference Bureau had published the budget-repair law at
the center of the controversy.
Stephen Miller, director of the LRB said Senate Majority Leader Scott
Fitzgerald (R) had asked him to publish the law and since the LRB had not been
named in Sumi's restraining order and state law required the agency to publish
laws within 10 days of being signed by the governor, he agreed.
Walker's top cabinet official, Department of Administration Secretary Mike
Huebsch, issued a brief statement March 25th reacting to the news.
"Today the administration was notified that the LRB published the
budget-repair bill as required by law," the statement said. "The
administration will carry out the law as required."
Sumi expressed her displeasure at the apparent defiance of her order last week,
at the end of a day of testimony in the open meetings case.
"Apparently that language was either misunderstood or ignored, but what I
said was, 'the further implementation of 2011 Wisconsin Act 10 is
enjoined,' " she said, adding: "Now that I've made my
earlier order as clear as it possibly can be, I must state that those who act
in open and willful defiance of the court order place not only themselves at
peril of sanctions, they also jeopardize the financial and the governmental
stability of the state of Wisconsin."
Senate Minority Leader Mark Miller (D) seconded the critical view of the
"They seem incapable of hearing people who say they are wrong," he
But Assembly Speaker Jeff Fitzgerald (R) seemed disinclined to begin
"It's disappointing that a Dane County judge wants to keep interjecting
herself into the legislative process with no regard to the state
constitution," he said. "Her action today again flies in the face of
the separation of powers between the three branches of government."
Sure enough, days later state officials were still working on implementing the
health insurance premium and retirement contribution increases, restrictions on
collective bargaining and cancellation of automatic union dues collection
mandated by the budget-repair law, despite Judge Sumi's threat of
"It is my duty to administer that law," said DOA Secretary
He maintained it was still not clear whether Sumi's order was binding on the
DOA, which, like the LRB, was not named in the open meetings lawsuit.
"It is unclear how she can issue an order binding non-parties to a case
who have not had their day in court," he said.
He added that the DOA would "continue to monitor court proceedings"
and work with legal counsel to determine its proper course of action.
(MILWAUKEE JOURNAL-SENTINEL, WISCONSIN STATE JOURNAL [MADISON])
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