The legal situation in Wisconsin is a mess. 

Judge Maryann Sumi preemptively issued a Temporary Restraining Order (TRO) which she thought (see below) would stop the publication of the budget repair bill, and therefore prevent the bill from becoming law.  This was an unprecedented move, and none of the legal arguments which attacked the validity of the law necessitated such interference in the legislative process.  A TRO issued soon after the law took effect would have been every bit as effective, but would not have created the legal limbo in which Wisconsin now finds itself.

The Court of Appeals compounded Judge Sumi’s actions by refusing to address those actions, punting the case up to the Supreme Court, without addressing the injunctive aspect of Judge Sumi’s order.  The Court of Appeals could have addressed the injunctive aspect of the TRO as related to interfering in the legislative process, while still referring the merits as to the validity of the law to the Supreme Court.

By issuing a TRO, Judge Sumi upset the status quo, which is the opposite of the purpose of a TRO.  The status quo was for the state to follow its normal schedule in publishing legislation, but that could not happen, or so thought Judge Sumi and the Dane County District Attorney who brought the lawsuit.

But yesterday the nonpartisan Legislative Reference Bureau published the law anyway (see my prior post for details), on the ground that it was not covered by the TRO which was against the Secretary of State only, and that it was required to do so. 

We now have another level of dispute, which is whether the publication by the LRB was sufficient publication for the law to take effect the following day (today).

We have multiple levels of uncertainty and legal limbo as to the status of the law, and it all reverts back to Judge Sumi’s overreach by interfering in the legislative process rather than allowing the law to take effect and then ruling on whether the law could be implemented by various state entities and individuals.

The pro-union forces certainly love this legal limbo.  Is the law law, or not? Who knows, everyone seems to have an opinion.  The longer the limbo continues, the better for those who oppose the law.

The role of courts is to remove legal limbo, to resolve issues in a way which provides clarity to the parties, and in this case, to the people of Wisconsin.  Instead, the present legal mess was created in substantial part by the Wisconsin courts.

Update:  Last night the District Attorney attempted to obtain a second injunction from another Judge (because Judge Sumi is away until Tuesday), but was denied relief:

A state judge declined to take emergency action on the matter. In an order issued late Friday, Dane County Circuit Judge Sarah O’Brien said she didn’t know what legal significance there was to the publication of the law on the Legislature’s website. Ordering it removed, as she said the district attorney wanted her to require, would mean nothing, the judge said.

O’Brien said no harm would be done in waiting until Tuesday when another judge had a previously scheduled hearing on a lawsuit challenging the law that was brought by Democratic Dane County District Attorney Ismael Ozanne. Last week, the judge hearing that case issued a temporary restraining order blocking the law’s implementation.

And Marquette Law Professer Rick Esenberg discusses the dispute over publication of the bill here.

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Related Posts:
Wisconsin Publishes Budget Repair Bill Despite TRO
Wisconsin Court of Appeals Refuses To Rule On TRO, Says Case Should Go Directly To WI Sup. Ct.
If Need Be, Re-Pass The Law And Include The Police Unions

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