DA opposing Van Hollen on Wis. budget issue

By Jessica M. Karmasek | Mar 23, 2011

Van Hollen

MADISON, Wis. (Legal Newsline) - Dane County District Attorney Ismael Ozanne is arguing that the temporary restraining order issued by a circuit court judge on Wisconsin Gov. Scott Walker's collective bargaining bill should be kept in place.

Ozanne filed a partial response to petition for leave to appeal non-final order with the Wisconsin Court of Appeals on Tuesday.

Wisconsin Attorney General J.B. Van Hollen on Monday 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 Walker'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 state appeals court on Monday, in response to the attorney general's request, asked Ozanne for an answer to the appeal.

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.

"The District Attorney here does not seek to block publication simply to prevent an allegedly unconstitutional bill from becoming law," Ozanne writes in his 12-page filing.

"Rather, he seeks to redress past violations of the rights of the public to sufficient prior notice of and meaningful access to the March 9, 2011 Joint Committee of Conference meeting, where action was taken to consider and approve a substantially revised version of 2011 Special Session Assembly Bill 11, the so-called Budget Repair Bill."

Nothing in the Open Meetings Law, Ozanne says, limits the authority of a court to enjoin publication of legislation that results from a violation of the law, "so long as the balancing of public interests supports that outcome."

Secretary of State Doug La Follette's argument that no court could invalidate the bill even after it becomes law following publication "goes too far," the district attorney says.

However, there is an "obvious" remedy to the situation, Ozanne points out. 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."

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.

"Further, the Secretary of State is without discretion to refuse to publish an act because of perceived procedural irregularities or constitutional concerns. Decisions of the Supreme Court are equally clear that acts may not be enjoined where the claim is that a rule of legislative procedure, even one as important as the Open Meetings Law, has been violated."

The attorney general added, "No matter whether individual citizens agree with the substance of the bill or the manner in which it was enacted, I would hope all see the value in ensuring this matter be given the opportunity to work its way expeditiously through the judicial process."

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

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