The Wisconsin Attorney General filed an emergency application requesting that the Wisconsin Court of Appeals vacate a Temporary Restraining Order issued by Judge Maryann Sumi prohibiting the Secretary of State from publishing the budget repair bill passed by the legislature and signed by Gov. Scott Walker.
The application raises several issues which go to the merits, but there is one procedural issue which likely will be the key. The full response of the Dane County District Attorney General is due at 4 p.m. today (Central Time), but the Court of Appeals ordered an expedited response on a single issue, which was filed yesterday by the D.A.
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.
The fact that the Court required expedited briefing on the issue is a sign that the Court gives the issue great weight.
If the Court rules that Judge Sumi had no power to interfere in the legislative process, then the Court need not address at this time the remainder of her ruling. If that happens, and the Court vacates the TRO on the ground that court acted prematurely and does not rule on the other substantive aspects of her ruling, expect the parties to be back in front of Judge Sumi next week.
Since the Secretary of State was schedule to publish the law on March 25, expect a Court of Appeals ruling by tomorrow, if not sooner.
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