Wis. judge says controversial bill not in effect

Jessica M. Karmasek Mar. 31, 2011, 1:48pm

Van Hollen

MADISON, Wis. (Legal Newsline) - Dane County Circuit Judge Maryann Sumi, in an amended order on Thursday, says Wisconsin Gov. Scott Walker's controversial collective bargaining bill has not taken effect.

Sumi issued the two-page order enjoining Secretary of State Doug La Follette from publishing the bill.

"Based on the briefs of counsel, the uncontroverted testimony, and the evidence received at the March 29, 2011, evidentiary hearing, it is hereby declared that 2011 Wisconsin Act 10 has not been published... and is therefore not in effect," Sumi wrote.

The circuit judge's order comes nearly a week after the nonpartisan Legislative Reference Bureau published the bill by posting it on a website. Walker said that was all that was needed for the law to take effect.

A law usually goes into effect when it is published by the secretary of state. However, La Follette could not publish the law because of the temporary restraining order put in place by Sumi.

Sumi made her original ruling March 18. 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.

On Monday, Attorney General J.B. Van Hollen, following the bureau's Friday posting of the bill, asked permission to withdraw two accompanying motions for relief. He argued that his petition on behalf of La Follette has been rendered moot by the bureau's action.

But the state's 4th District Court of Appeals, in an order Tuesday, didn't see it that way.

It denied Van Hollen's motion, saying it "raises the question" whether the court has the authority to grant such a motion after certifying the matter to the state Supreme Court and before the Court has acted on the certification.

Last week, the appeals court called on the state's high court to decide whether the temporary restraining order should be kept in place, certifying a petition for leave to appeal and accompanying motion for temporary relief to the Court and certifying two specific 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.

The appeals court said it believes the matter now rests in the Supreme Court's hands.

"The Supreme Court might, for example, conference on the topic, conduct research or order additional briefing or argument to assist it in deciding whether to review the matter," the appeals court wrote in its order.

"That is to say, this matter is not now solely before this court and we doubt the Supreme Court views our power as being so broad that we may unilaterally act to remove the case from both courts."

The appeals court said it is "apparent" that the attorney general doesn't merely request an order permitting the withdrawal of his petition, but seeks a ruling on an "entirely new" question.

That is, whether the bureau's action means that the collective bargaining bill has become law.

"The attorney general's desire for a ruling on this issue is apparent because the only ground he offers to justify withdrawal is his legal argument and assertion that the act has become law," the appeals court wrote.

From Legal Newsline: Reach Jessica Karmasek by e-mail at jessica@legalnewsline.com.

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