Guidance on budget issue requested from Wis. SC

Jessica M. Karmasek Mar. 24, 2011, 2:21pm

Van Hollen

MADISON, Wis. (Legal Newsline) - A Wisconsin appeals court is calling on the state Supreme Court to decide whether the temporary restraining order issued by a circuit court judge on Gov. Scott Walker's collective bargaining bill should be kept in place.

The state's 4th District Court of Appeals, in a filing on Thursday, certified two questions to the state's high court.

It says the case "presents several significant issues involving justiciability and the remedies that are available" under the state's Open Meetings Law and believes "that resolution of these questions will require clarification of the interaction between the Open Meetings Law and a line of cases dealing with the separation of powers doctrine."

The appeals court says in its eight-page filing that the case has "broad statewide implications" for the general public and those affected directly by the bill.

On Monday, Wisconsin Attorney General J.B. Van Hollen appealed the temporary restraining order issued by Dane County Circuit Judge Maryann Sumi. Sumi made her ruling on Friday. In it, she said a legislative committee violated the state's Open Meetings Law when it approved a new version of the governor's budget bill on March 9.

The Budget Repair Bill has been a source of controversy for weeks, eliminating nearly all collective bargaining rights for those public employee union members. Walker, a Republican, had proposed the bill in response to state budget deficits.

Now, because of Sumi's order, the law can't take effect.

The appeals court on Monday, in response to the attorney general's request, asked Dane County District Attorney Ismael Ozanne for an answer to the appeal. He filed his response on Tuesday.

Ozanne argues in his filing that where a violation of the Open Meetings Law is committed in the state Legislature, a court has the authority to enjoin the Secretary of State from publishing the act that is the product of the violation.

The district attorney says he does not claim that the bill itself is unconstitutional, but that the bill was the product of a violation of the law.

He contends there is an "obvious" remedy to the situation. That is, to "start over and re-enact the substance of 2011 Wisconsin Act 10, by following the public notice, public access and other requirements of the Open Meetings Law."

Because of the ruling's impact, the appeals court has certified petition for leave to appeal and accompanying motion for temporary relief to the state Supreme Court.

According to its filing, it certifies the following questions:

- 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

- Whether a court has the authority to enjoin the Secretary of State's publication of an act before it becomes law.

"It appears to us that the central question presented by the petition and request for temporary relief is whether the Open Meetings Law's express reliance on and reference to Wis. Const. Art. IV, § 10 means that the statute should be interpreted as protecting a constitutional interest, thus subjecting alleged violations by the Legislature or subunits thereof to judicial review," the appeals court wrote.

Van Hollen contends that the Legislature and the governor, "not a single Dane County Circuit Court judge," are responsible for the enactment of law.

"Decisions of the Supreme Court have made it clear that judges may not enjoin the Secretary of State from publishing an act," he said in a statement on Friday.

From Legal Newsline: Reach Jessica Karmasek by e-mail at

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