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Judge Sumi Throws Out Wisconsin Collective Bargaining Law

Judge Sumi Throws Out Wisconsin Collective Bargaining Law

No surprise here.

Judge Maryann Sumi has issued a ruling throwing out the Wisconsin collective bargaining law based on an alleged failure to comply with the state Open Meetings Law.  Unlike prior rulings, which were based on a “likelihood of success” standard in connection with emergency injunctive relief, this is a full ruling on the merits.

As reported by JSOnline (h/t reader James):

A Dane County judge has struck down Gov. Scott Walker’s legislation repealing most collective bargaining for public employees.

In a 33-page decision issued Thursday, Dane County Circuit Judge Maryann Sumi said she would freeze the legislation because GOP lawmakers on a committee broke the state’s open meetings law in passing it March 9.

The full decision is here.  Her findings of fact are here.

Updates:

Having read through the decision, it is clear that Judge Sumi glossed over some key problems in her attempt to interfere in the middle of legislative action.  Remember, she issued an injunction previously to stop the law from taking effect, in essense stopping the legislature from being the legislature. 

It is one thing for a court to rule on the validity of a law, but quite another thing for a court to stop the legislature from making law.  Judge Sumi gives short shrift (at pp. 13-14) to the key Wisconsin case which says courts must await a law coming into effect before ruling on the law, Goodland v. Zimmerman.  Judge Sumi summarily dismisses the import of Goodland by stating that it was a pre-Open Meetings law ruling.  Well, chronologically yes, but the principle is the same; courts rule on legislation, courts do not stop legislation from being made.

On the merits, Judge Sumi takes an expansive view that all that flows from an Open Meetings violation is subject to being voided.  The alleged violation took place at a committee meeting which merely moved the legislation to a full vote.  The actual vote approving the legislation complied with the Open Meetings Law under any scenario.

Beyond these procedural problems, Judge Sumi made a fundamental — and unbelievable — mistake.  Judge Sumi found (Opinion at page 10, Findings of Fact and Conclusion of Law no.79) that there was “no conflicting Senate” rule which would contradict Open Meetings Law time requirements. 

But there was such a rule, Senate Rule 93(2), which provides that no notice to the public, other than posting on a bulletin board, is needed for a committee meeting when the Senate is in special session.  In her findings of fact (nos. 15, 29, 57), Judge Sumi found that the Senate was in special session at the time of the committee meeting at issue.

At no point in her decision does Judge Sumi address Senate Rule 93.  If there were an argument why Rule 93(2) was not a conflicting rule of the Senate, one would have expected Judge Sumi to address it.  I’d have to go back to the briefs to see how the parties (which did not include the legislators themselves) dealt with Rule 93(2), but certainly Judge Sumi is on notice of the Senate Rules and should have addressed Rule 93(2).

More:  Marquette Law Professor Rick Esenberg discusses the ruling in this podcast.

And, this is not good.  Yesterday the Wisconsin Department of Justice wrote to Judge Sumi inicating that she needed to recuse herself and asking her not to make any rulings in the case until she ruled on the recusal issue, and today she issued her ruling.  Details here (h/t Charlie Sykes).

[Note: Changes and additions were made to the original text of this Update.]
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This is a pretty blatant example of judicial imperialism: the legislature is an independent branch of government, yet now a member of the judiciary is telling the legislature how to obey its own rules. I expect this won't survive review at the Wisconsin Supreme Court.

I suggest the Republicans step up and now make Wisconsin a right-to-work state for all employees. If the Democrats want to double-down, then double-down.

"Judge Sumi made a fundamental — and unbelievable — mistake…"

I believe you are attempting to work around actually calling the Judge a liar here. It is impossible for Judge Sumi to have gone thru this case without knowledge of Senate Rule 93, therefore this is not ignorance or incompetence. This is simply a lie by omission.

As Sumi is a mummy-like creature, here may be a good spot to share this piece — Egypt’s Lost Pyramids Discovered by Satellite Imaging

1. Beyond these procedural problems, Judge Sumi made a fundamental — and unbelievable — mistake.

Are you sure it was a mistake? (Cf. Georgfelis.)

2. pubsecrets said…This is a pretty blatant example of judicial imperialism: the legislature is an independent branch of government, yet now a member of the judiciary is telling the legislature how to obey its own rules.

A junior member of the judiciary is telling the entire legislature how to follow its own rules.

I expect this won't survive review at the Wisconsin Supreme Court.

Judicial imperialism will continue until someone stops it. To date that cure has been considered to be worse than the disease, but at some point that stops being true.

I won't type my gut opinion about what the legislature & governor should do about Sumi, Kloppenburg, and whatever other judge is involved in the shenanigans. A possible reciprocation to Sumi is for the legislature to subpoena all her records relevant to this case and summon her to testify.

3. Apparently, so far, the unscrupulous politics the Democrats been playing since November is paying off for them.

This is the sort of decision that pushes the populace toward the adoption of the Theodore Roosevelt position that some judicial decisions should be subject to plebiscite.

Activist judges legislating from the bench. Can she be hauled out in front of the bar for this? What options are available to challenge her ruling?

"At no point in her decision does Judge Sumi address Senate Rule 93. If there were an argument why Rule 93(2) was not a conflicting rule of the Senate, one would have expected Judge Sumi to address it. I'd have to go back to the briefs to see how the parties (which did not include the legislators themselves) dealt with Rule 93(2), but certainly Judge Sumi is on notice of the Senate Rules and should have addressed Rule 93(2)."

Re-read the decision, more carefully this time. I agree it would be nice if Judge Sumi had addressed the Rule 93 argument (made primarily by bloggers and blog commentators), but it is not necessary to her decision, which is based on the requirement that meetings be "held in open session" "Open Session" is defined as, "a meeting which is held in a place reasonable accessible to members of the public and open to all citizens at all times." This has nothing to do with the "bulletin board" provision in Rule 93. Sumi then cites to more than a dozen findings of fact from the two days of testimony in March to conclude that the meeting was not held in an "open session". I've not seen the findings of fact yet – they don't seem to be posted anywhere yet.

Whether or not there is an appeal, two other things loom.

First, the Wis Sec'y/Administration has filed an action with SCOWI which, in effect, asks SCOWI to tell Sumi to go pound sand–that she should not have arrogated jurisdiction, NOR issued her TRO.

Second, the Leggies may insert the entire law into the Budget legislation–which will pass handily.

Of course, the FleeBags may well flee again.

This entire episode works to the disadvantage of Democrats. Independents have tired of the whole thing and will badly punish the Democrats beginning with the "recall elections". Between this and the Kloppenburg circus even a number of Democrats have had enough.

If this all goes down as I think it will, here's how it will look:

Kloppenburg takes the election to court. Sumi rules that the election was flawed and a new vote must take place. On appeal to SCOWI,Democrats demand Prosser recuse himself (they will do the same over the Budget Repair Bill if Abrahamson lets it move forward forward before August 1 – Arguments begin in June, but a ruling, I suspect will come much later). If Prosser backs out of any ruling, ties go back to Sumi (so I'm told) and will stand. Now, I am making the assumption that, since his current term does not end until July 31, that this is the case.

This fits the pattern and I expect it to go forward in this manner.

"At no point in her decision does Judge Sumi address Senate Rule 93."

Oy vey, man. Re-read page 24, where the Senate Chief Clerk admits that no conflicting legislative rule was in effect.

Deekaman,

If Kloppy goes forward with a court challenge it won't be Sumi hearing the case. It has to be a retired Circuit Judge. The Wisconsin Supreme Court couldn't just call for a new election, since I doubt such a procedure exists in Wisconsin law.

I think Kloppy is just stringing Plosser eventual victory out by now, since the only way Kloppy could steal that election is by disenfranchising a large chunk of Waukesha's vote, which would trigger a Federal Establishment Clause issue (the WiSC will never walk into that mess).

although there will be ludicrous calls for it, there is no reason Prosser would need to recuse himself from the appeal of Sumi's decision. He is not tainted by involvement in the Collective Bargaining law.

What Milwaukee said. Make WI a Right to Work State.

Has the concept of ultra vires fallen off the face of the planet? Why has Walker gone along with this farce, and why does he continue to do so? If I were in Walker's position I would have ignored her injunction as ultra vires, and now have done the same with this decision. She has no authority to do this, so it's a nullity.

When does Judge Sumi come up for re-election?

The "Goodland was a pre-Open Meetings case" is a bunch of horse manure. The claim by governor Goodland, both in his attempt to stop publication of the act and his subsequent attempt to stop enforcement of the law, was that the Assembly used a process called "pairing", where someone who would vote aye finds someone who would vote nay, and neither actually records an aye or a nay, to circumvent the constitutional requirement of 2/3rds present to override a veto.

Specifically, Goodland vetoed a bill that gave the Supreme Court total control over the Wisconsin bar, and had the 10 "paired" votes been counted as 5 ayes and 5 nays, the Assembly would have failed to override his veto. Mostly because the bill gave the Supreme Court total control over the bar, they ingored the fact that there were "paired" votes in both suits.

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