Channel 3000.com in Wisconsin is reporting that the Wisconsin Court of Appeals has declined to rule on the TRO enjoining the Secretary of State from publishing the budget repair bill:

The Wisconsin Court of Appeals declined on Thursday to rule on a Dane County judge’s order stopping the publication of a controversial union law passed by the Legislature earlier this month. The case will now be decided by the state Supreme Court.

The court said the Supreme Court should decide whether a law that takes away nearly all collective bargaining rights from most public workers should be allowed to take effect.

A majority of the seven-member Supreme Court must agree to take it or it would remain in the appeals court.

The 4th District Court of Appeals said Thursday it is appropriate for the state’s highest court to take the case because it presents significant issues that are likely to end up before the Supreme Court anyhow.

A Dane County judge issued an order last week preventing Secretary of State Doug La Follette from publishing the law, saying Republicans violated the state open meetings law when passing it.

According to the Wisconsin State Journal, the Court sent two questions to the Supreme Court:

The court sent two questions to the Supreme Court: Can a circuit court judge strike down a legislative act as a remedy for violation of the state’s open meetings law, and if so, does the court have the authority to stop the secretary of state from publishing the bill before it becomes a law?

I addressed this issue yesterday:

The issue on which the Court required an expedited response was whether the courts had the power to stop the publication of a law, which is a ministerial task the Secretary of State performs.

The issue goes to the heart of separation of powers, because Judge Sumi effectively prevented the legislature from making law. This is quite extraordinary, and contrary to prior Wisconsin precedent.

It is one thing for a court to rule on the legality of a law; it is quite something else for a court to prevent the law from being made.

Think of it this way in terms of the Obamacare health care mandate. The law came into effect, and now courts are ruling on the constitutionality of the law. Had a judge felt it was warranted, a judge could have issued an injunction preventing implementation of the law — but no one ever suggested that a court preemptively should have interfered in the legislative process and issued an injunction preventing Obama from signing the law, or the clerks of the House and Senate from taking whatever ministerial steps they take to pass the law along to the President.

While waiting for someone (the court, a newspaper, etc.) actually to post the opinion, it is worth noting that this raises the tactical issue, once again, of whether the legislature simply should re-notice and re-vote, something I suggested right after Judge Sumi issued the TRO.  Some have suggested that the Republicans don’t have the votes in the Senate anymore, and that’s why they’re going the court route.  Who knows.

Analysis to follow when Court of Appeals decision is available.

Updates:  The Court has posted the decision, in the form of a Certification to the Supreme Court.

The Court found that the Supreme Court case law required clarification on the two issues below, and therefore felt that only the Supreme Court could do so:

“We certify the following questions: (1) whether striking down a legislative act—also known as voiding—is an available remedy for a violation of the Open Meetings Law by the legislature or a subunit thereof; and, if so, (2) whether a court has the authority to enjoin the secretary of state’s publication of an act before it becomes law. [3]”

The footnote 3 referenced, states as follows:

“[Secretary of State] La Follette also contends that the circuit court erred in issuing the TRO because: (1) the secretary of state is immune from suit; (2) there was no violation of the Open Meetings Law here because the government bodies at issue followed conflicting legislative rules for notice, that took precedence over Open Meetings Law provisions; (3) even if there was a violation, the remedy would be limited to voiding the actions of the legislative committee and senate who committed the alleged violations, and could not reach subsequent actions by the assembly, governor or secretary of state; and (4) the circuit court failed to properly consider the irreparable harm to the State which La Follette claims will be caused by the TRO.  We do not believe that any of those questions, standing alone, would warrant granting leave to appeal, although, of course, the Wisconsin Supreme Court would have full authority to address any or all of them.”

The Court sent both the general appeal and the emergency application to lift the TRO to the Supreme Court.

I’m not familiar enough with Wisconsin procedure to know what this means for the hearings scheduled next week before Judge Sumi, and whether such hearings can proceed while an appeal is pending.  But if this indicates a long appellate process, during which the Secretary of State cannot publish the law or the State cannot implement the law, it seems that the Governor and legislature need to rethink the strategy, and re-vote if they still have the votes.

Reading through the relatively short decision, it is clear that this was a total punt by the Court of Appeals.  Considering that the State will be harmed by the delay in publication, which interferes with the legislative process, the Court could have ruled on the TRO portion bases on the same likelihood of success standard employed by Judge Sumi. 

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