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Van Hollen's motion denied in Wis. budget issue

By Jessica M. Karmasek | Mar 29, 2011

Van Hollen

MADISON, Wis. (Legal Newsline) - Wisconsin's 4th District Court of Appeals, in an order Tuesday, denied a motion by Attorney General J.B. Van Hollen that asked permission to withdraw his pending petition for leave to appeal a temporary restraining order.

Van Hollen, who also asked permission to withdraw two accompanying motions for relief, argued Monday that his petition on behalf of Secretary of State Doug La Follette has been rendered moot by actions taken by the Legislative Reference Bureau last week.

On Friday, the nonpartisan bureau published Gov. Scott Walker's controversial collective bargaining 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 Dane County Circuit Judge Maryann Sumi.

Sumi made her 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.

The appeals court, in its three-page order, said Van Hollen's motion for withdrawal "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.

On Thursday, 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 it lacks the authority to grant Van Hollen's motion and that 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."

Moreover, 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 Legislative Reference Bureau's action on Friday 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.

Van Hollen maintains 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 recent statement.

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

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