Judge MaryAnn Sumi strikes down collective bargaining law
Post by dane101 on 5/26/2011 10:15am
In a decision issued today in Dane County Circuit Court Judge MaryAnn Sumi ruled the collective bargaining bill passed by the Joint Finance Committee on March 9 was null and void due to violation of the state's open meeting laws.
The ruling is as follows:
This case requires the court to determine whether members of the Wisconsin Legislature violated Wisconsin's Open Meetings Law on March 9, 2011, and if so, whether any governmental actions taken as a result are void...the State has shown by clear and convincing evidence that the March 9, 2011 meeting of the Joint Committee of Finance violated 19.82, 19.83 and 19.84 of the Wisconsin Statutes.
Today this court has issued separate Findings of Fact, Conclusions of Law and Judgement. The Findings of Fact set forth the evidence establishing the Open Meetings Law violations. This decision clearly explains why it is necessary to void the legislative actions flowing from those violations...The Judgement accordingly declares that the March 9, 2011 action of the Legislature's Joint Committee of Conference is void, and that 2011 Wisconsin Act 10 is consequently has no force or effect.
Republican Legislators are apparently now meeting to determine a new way forward with the provisions that would strip public employees (except firefighters and police) of nearly all collective bargaining rights, minus those related to negotiations over salary.
They have three main options: Wait for the Wisconsin Supreme Court to make a ruling (they take up arguments to determine whether they'll hear the case at all on June 6), try to pass it as a stand-alone bill, or insert the provisions into the two-year budget to be debated and voted on this summer.
Absolutely bizarre. What is
Submitted by Ninja (not verified) on Thu, 2011-05-26 11:51.
Absolutely bizarre. What is going on with this judge?
Um ...
Submitted by leftilicious on Thu, 2011-05-26 13:51.
She's, uh, following the law. Which says the government can't meet in secret and can't pass laws without notifying the public what it's up to.
That's what she's up to.
That's not what the law says
Submitted by Ninja (not verified) on Thu, 2011-05-26 15:20.
That's not what the law says with regard to the legislature, but that's beside the point. This whole case stinks. Who had standing, and on what grounds? How can the judiciary enjoin the legislature from doing its work? Why was clear precendent on that issue completely ignored? Why then cite MJS v DOA just because both cases involve collective bargaining? Where's the discussion of the obvious, significant seperation of powers issue? What took so long in releasing a judgment that's just a rehashing of the facts followed by a magical leap in reasoning? Where did Judge Sumi get this clear and convincing standard that she seems to rely on but never discuss? Or the balancing test for that matter?
I used to laugh when I heard people whine about activist judges. I won't do that anymore. This has gone from bush league to ridiculous.
Actually...
Submitted by Emily Mills on Thu, 2011-05-26 18:13.
Read this and let the scales fall from your eyes, Ninja: http://illusorytenant.blogspot.com/2011/03/law-profs-wing-nuts-gone-noticeably.html
That has absolutely nothing
Submitted by Ninja (not verified) on Fri, 2011-05-27 11:22.
That has absolutely nothing to do with any of the issues I raised.
That's only because you want
Submitted by a_guy_named_joe on Fri, 2011-05-27 20:41.
Ninja, that's only because you want us to debate your ideas of what the laws should be, and not the actual laws as they are written. We tried.
Geez.........
I'm done with Ninja. Faulty logic and a complete inability or lack of willingness to consider opposing viewpoints does not make for a good holiday weekend.....but I'm sure Ninja has a wonderful, great, fulfilling life.
Multiple alternative bratfests. Thank you Madison, this is going to be one awesome weekend! (And fests that will be much healthier for its participants too, no MSG, BHA, or propyl galatte added like the J-ville variety).
Ninja must have failed history classes in high school
Submitted by a_guy_named_joe on Fri, 2011-05-27 09:20.
The Judicial Branch has the power to review the laws of the Executive and Legislative Branches because the founding fathers deliberately built a series of checks and balances into government so that one branch would not get out of control, like trying to pass an over-reaching law in violation of the Open Records Act.
Furthermore, anyone who refers to Sumi as an activist judge is not as moderate or open-minded as you try to make yourself appear to be Ninja, because Sumi was appointed by a Republican Governor. Up until she ruled against the current Republican interests, nobody called her an activist judge. The fact is, Republicans call any judge who doesn't follow their pro-corporate philosophy an activist or liberal.
And Sumi, in her ruling, cited the very statutes which were violated. Try reading more and spending less time on right wing media. Your post (and your mind) is filled with right wing talking points.
Those checks and balances are
Submitted by Ninja (not verified) on Fri, 2011-05-27 11:43.
Those checks and balances are precisely what I’m talking about Joe. The judiciary doesn’t have any control over what laws the legislature passes. That’s a huge issue in itself and the subject of two separate Wisconsin Supreme Court decisions that absolutely should have been acknowledged at the very least, if not discussed and distinguished from the present case. The courts don’t have the power to enjoin the creation of law. But that’s exactly what happened here.
The proper course would have been to allow the law to take effect and then declare it unconstitutional because its passage violated the open records law. To do that, however, there would have to be someone who suffered an actual injury. That’s called standing and it gives a person the right to sue. The courts can’t just independently decide that they want to review certain laws or legal procedures. Those issues must be brought to them in a legitimate controversy by a person who has standing to sue. Obviously a law that never took effect had no opportunity to cause injury so there was no standing in this case.
Those two problems alone make this whole situation laughable. A judgment like this would normally begin with a discussion of the basis of the court’s jurisdiction. Pretty tough to argue jurisdiction over a separate and equal branch of government so Sumi just skipped that part. It would then normally move on to a discussion of the parties and the petitioner’s grounds for standing. Again, no possible grounds for standing in the case of a law that hasn’t even taken effect, so she just glossed over that too. It’s funny that this judgment scolding the legislature for not following procedure doesn’t follow procedure.
I’m not a partisan. I don’t really care one way or the other about the collective bargaining law. But I do care a great deal about the rule of law and legal process so this whole mess bothers me. It should bother everybody, regardless of what team they’re on, but “winning” has become more important than doing things the right way in the last couple of decades.
The court didn't just
Submitted by Emily Mills on Fri, 2011-05-27 14:07.
The court didn't just "decide" to rule on this case. A lawsuit was brought by Dane County DA Ismael Ozanne over the fact that the JFC meeting wherein the law was passed violated the Open Meetings Law of the state.
I honestly don't understand why you'd think we should even have the open meetings rules if you think it's OK for them to be knowingly broken to pass something, then have that thing guaranteed to take effect before anyone can try to stop it.
But Attorney Ozanne and those
Submitted by Ninja (not verified) on Fri, 2011-05-27 15:16.
But Attorney Ozanne and those who he represents didn’t suffer any injury. It’s not possible because the law never took effect. The case should have been tossed for lack of standing from day one and I don’t think a reasonable argument can be made otherwise (hence the entire issue being ignored in the ruling). Same thing with the jurisdiction issue. There’s no reasonable argument that can be made because the separation of powers problem is obvious and the Supreme Court has already weighed in it twice and found that Wisconsin courts lack the power to enjoin the legislature. How do you get around that? Again, just ignore it!
This is mob rule. I’m sure most people reading this are with the mob so they’re willing to tolerate it but for someone who doesn’t have a dog in the fight it’s truly chilling.
"The proper course would have
Submitted by a_guy_named_joe on Fri, 2011-05-27 15:29.
"The proper course would have been to allow the law to take effect and then declare it unconstitutional because its passage violated the open records law."
Not if the law itself was created illegally. Let's say, just for the sake of argument, that tonight Scott Walker declares himself a living God and calls the National Guard out to immediately kill all first-born male sons in Wisconsin. The Republican Assembly and Senate pass the bill without providing proper notice....
So using your logic, you think it would be OK for the National Guard to kill all the first-born children because that is allowing the law to take effect, and only AFTER that occurred, try to stop it because it was unconstitutional.
No state can make laws illegally.If the laws aren't properly legislated when they are created and voted upon, they shouldn't be allowed into law in the first place. And let's face it, the Republicans really screwed up. They were so petulant and intolerant they couldn't even follow the rules and post two hours notice.
How about this: Scott Walker declares a new law that anyone who calls themselves "Ninja" has to pay 100% of his or her earnings to the Scott Walker recall campaign fund. Every single penny you earn is taken from you. Again, the Republicans illegally make this bill law. If you don't pay 100% of your earnings to Scott Walker, you are thrown in jail.
Do you really want that to go into law? Don't worry, it's a rhetorical question, you've already said yes.
And honestly, you can say you're impartial and just concerned about the rule of law, but anyone who uses the phrase "activist judges" has proven they are incapable of independent thought. At the very least, your argument loses a tremendous amount of credibility when you throw out over-used right-wing catch phrases. What's next, a post about "Obamacare?"
Unconstitutional laws are
Submitted by Ninja (not verified) on Fri, 2011-05-27 17:01.
Unconstitutional laws are adopted in statehouses and Congress every day but until they’re challenged by a person with standing and found invalid by a court with jurisdiction they remain in effect. According to section 940.04 of the Wisconsin Statutes it’s illegal to perform an abortion in the state. But 940.04 can’t be enforced because the US Supreme Court has found such laws to be unconstitutional. That doesn’t mean that a local DA could sue to state to have it removed from the statutes because it’s an unconstitutional law. Someone would have to be injured first (ie have their right to an abortion denied, which won’t happen because of Roe v. Wade) and then the challenge to the statute could proceed. That’s the reason it’s still on the books.
There’s the way you think it should work and there’s the way it actually works. Two very different things. I would be fine with your Ninja law example. I would immediately file suit when it took effect because I would have standing then and there would be no separation of powers issue because it would be out of the legislature’s hands. I’d get an immediate injunction to halt enforcement then the law would be invalidated a short time later and I’d probably get a nice little payday to compensate for the assault on my rights. That’s how it’s done. That’s how it should have been done in the Ozanne case. That might not feel right if you’re just listening to your gut, but that’s how the law works and it’s not up for debate.
BTW, that was my point about “activist judges.” I used to laugh right along with all the other rational people when the right wingers threw the phrase around, along with phrases like “liberal media.” I’m not laughing any more. The only thing I’ve learned in the last 100 days is that the left has just as many irrational screamers as the right and they are just as uninformed (or deliberately misinformed) and manipulated. And that activist judges really do exist. There’s no other explanation for this outcome.
There's a difference between
Submitted by a_guy_named_joe on Fri, 2011-05-27 18:37.
There's a difference between laws which are passed legally and that are later found to be unconstitutional, where the writers of the law did not fully predict real-life ramifications after the law's passage, and laws which are first and foremost created illegally, like Walker's budget repair bill. I'm not going to argue with you because you fail to see such an obvious difference.
Also, according to the ninja tax hypothesis, it's funny you would run to court and file suit, using a court of law to defend your rights when you've been complaining all day that Sumi and the courts shouldn't be able to do such a thing....but if it works for you, then it's OK. Split hairs on it all you want, it's easy to see how it works in your mind. And I'll take your complete omission of the first-born hypothesis that you couldn't think of a way to defend your ideas against that one. You get your money back but the rest of Wisconsin's first-borns are slaughtered, thanks to your interpretation of current law. That seems to be fine with you.
By the way, you were the one who originally threw out the "activist judge" phrase, and apparently you meant it at the time. There's no backing away from that. And now you are attacking the left and framing them with derogatory language, all while trying to pose as someone middle of the road. A true middle of the road person wouldn't do that. You couldn't make your intentions and condescending opinions any more clear, but unfortunately for you, you actually seem to believe what you are telling yourself.
And thanks for the abortion reference. Yeah, sure, you're no right-winger. You truly are open-minded and middle of the road.
Listen buddy, I don't care
Submitted by Ninja (not verified) on Tue, 2011-05-31 11:15.
Listen buddy, I don't care about this liberal/conservative pissing match in the slightest so if you want to call me a right-winger that's fine. Doesn't change reality. These are the most basic, elementary concepts in judicial review established way back in Marbury v Madison. There must be a legitimate contraversy. The court must have jurisdiction. The petitioner must have standing.
None of these things are up for debate and none of these things were present in the Ozanne case. If you'd like to make an actual argument to the contrary then proceed, but stop telling me that I just don't understand because you're the one who has absolutely no idea what he's talking about..
Ninja, you keep saying these
Submitted by Atwoodeastsider (not verified) on Tue, 2011-05-31 21:04.
Ninja, you keep saying these things are "not up for debate", and yet... they were debated and not found to have any merit. Just like how you call the 14 "AWOL", as if state legislators are like people in the armed forces who can be compelled to follow orders. Fitzgerald tried everything he could that he could even remotely contend was legal, including coercion and intimidation, to compel the 14 to return. You know what? He couldn't legally do it, so he went around the laws to pass his bill. That, in a nutshell, is what happened. You can argue until you're red in the face (I can't imagine you ever being blue), but actual lawyers and judges have done that already, and this is how the process has played out so far.
You write like a paid troll, sounding like you make sense, but not grasping the reality of the situation.
I guess "not up for debate"
Submitted by Ninja (not verified) on Wed, 2011-06-01 10:21.
I guess "not up for debate" is a phrase that I'll have to retire given the current situation. But for hundreds of years preceding this event the basics of judicial review were literally not up for debate so it's going to be hard to shake. Things like ripeness, standing and jurisdiction used to matter a whole lot, so to throw them out now is going to be a difficult transition and you won't find a single honest legal mind out there who can justify this decision.
And you're wrong that these things were debated and found not to have merit. They were ignored. Blatantly ignored in order to reach a decision guided by ideology rather than law. Ideologues are okay with that, but I'm not an ideologue, I'm a lawyer, and a pretty old-school one at that.
Frankly I hope this law never passes. My compensation, both salary and benefits, is tied to the contracts that unions negotiate. Passing this law will mean less money in my pocket, but I'm still not willing to abandon the rule of law over it. Of course we're talking about a few hundred dollars for me as opposed to the end of a judicial career for Judge Sumi if she were to follow the law and then face the wrath of Dane County voters, but that shouldn't matter. It does though. More than I ever imagined. And that's sad.
Just out of curiosity, what do you think we should do with the 2009 budget? Should I file suit to invalidate the whole thing? It was adopted by conference committee and the call went out about 2am on a Wednesday morning. No notice, no public involvement, just a bunch of Democrats huddled up in a conference room passing legislation that became law the next day. Early release of felons, mandatory auto insurance, jacked up capital gains tax rates. A lot of people cared quite a bit about those issues but there were no protests. None of the Republicans went "AWOL." Nobody sued. Assuming you're geniunely interested in open government and this isn't just another petty skirmish in the culture war, what do you suggest we do with all those illegal laws?
Joe already pointed this out,
Submitted by Emily Mills on Wed, 2011-06-01 01:15.
Joe already pointed this out, but it's worth repeating: Judge Sumi didn't rule on the constitutionality of the law itself - and was not asked to - but rather on the legality of the process by which the law was passed. It's a critical distinction.
DA Ozanne, representing the people of Dane County/Wisconsin, absolutely had standing to file said suit given the "injury" done via the breaking of that law. It doesn't matter that the law itself didn't go into effect and couldn't cause injury - the process by which it was passed created the injury, and thus gave him standing to file suit. And that's what Sumi ruled on. And that makes perfect sense to me, and many other far finer legal minds than my own.
No, that's an elementary
Submitted by Ninja (not verified) on Wed, 2011-06-01 10:28.
No, that's an elementary distinction that anyone who knows anything about the law would make before even begining to examine the case. I got that.
Can you cite a comment from one of these fine legal minds on the issue of standing? I bet you can't, because no one who has any idea what they're talking about would ever suggest that Ozanne had it.
There are so many problems with this decision it gets a little mind boggling. From the basic seperation of powers issue down to the difference between void and voidable. This is complicated stuff, and people whose legal education consists of blog posts and Judge Judy reruns really aren't capable of arguing it. That doesn't stop anybody these days, of course, but popular, pop culture informed consensus doesn't trump the law, and wanting a certain outcome isn't the same as being able to justify a certain outcome.
Here's the judgment
Submitted by Jesse Russell on Wed, 2011-06-01 11:06.
Pardon the interruption of this debate, but I'm not sure everyone in this thread has read the judgment.
http://www.cwpb.com/CM/PDF/State%20ex%20rel%20Ozanne%20v%20Fitzgerald%20FFCL.pdf
I'd like to see this decision
Submitted by anon (not verified) on Fri, 2011-06-03 20:36.
I'd like to see this decision go to the Supreme Court. It seems that in Sumi's decision as posted by Jesse, there is mention of why the court has jurisdiction. Admittedly, I know little about the law, but it seems that if the legislature illegally passes a law, other branches of government should have the power to step in. The whole checks and balances thing that we're all so fond of. For example, had the legislature ignored the quorum requirement and passed the budget repair bill without the necessary number of senators, shouldn't some branch of our government be able to say, "no, that isn't a law"? How else would we prevent the legislature from ignoring the very laws that they pass or ignoring the Wisconsin constitution that lays out the rules for passing a law?
Also, with the issue of standing, I was under the impression that injury need not be actual, but demonstrating imminent injury is sufficient. So it's not as clear to me as it seems to be to you that it needed to have actually become law before the courts can rule on it. I don't know, however, what sort of imminent injury Ozanne might have argued.
From page 25 of the OML
Submitted by anon (not verified) on Fri, 2011-06-03 20:54.
From page 25 of the OML compliance guide on the DoJ website:
"In addition to the forfeiture penalty, Wis. Stat. § 19.97(3) provides that a court may void any action taken at a meeting held in violation of the open meetings law if the court finds that the interest in enforcing the law outweighs any interest in maintaining the validity of the action. Thus, in Hodge, 180 Wis. 2d at 75-76, the Court voided the town board’s denial of a permit, taken after an unauthorized closed session deliberation about whether
to grant or deny the permit. Cf. Epping, 218 Wis. 2d at 524 n.4 (arguably unlawful closed session deliberation does not provide basis for voiding subsequent open session vote); State ex rel. Ward v. Town of Nashville, 2001 WI App 224, ¶ 30, 247 Wis. 2d 988, 635 N.W.2d 26 (unpublished opinion declining to void an agreement made in open session, where the agreement was the product of three years of unlawfully closed meetings). A court may award any other appropriate legal or equitable relief, including declaratory and injunctive relief. Wis. Stat. § 19.97(2)."
Again, I know nothing about the law, but this reads to me like a court does have the power to void actions taken by the legislature when it violates the open meetings law.
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