No intervention needed from Wis. SC, Dane County DA argues

By Jessica M. Karmasek | Jun 2, 2011


MADISON, Wis. (Legal Newsline) - Dane County District Attorney Ismael Ozanne said Wednesday the Wisconsin Supreme Court no longer needs to intervene in the ongoing legal challenge over Gov. Scott Walker's controversial Budget Repair Bill.

Ozanne argues in a court filing that Dane County Circuit Court Judge Maryann Sumi's final judgment and order renders moot a petition for supervisory writ filed by the State and Michael D. Heubsch, secretary of the Wisconsin Department of Administration, on Friday.

In a 33-page decision filed May 26, Sumi ruled that the March 9 meeting of the state Legislature's Joint Committee of Conference violated Wisconsin's Open Meetings Law and that the budget bill "consequently has no force or effect."

The governor's bill, Wisconsin Act 10, has been a source of controversy for months now, eliminating nearly all collective bargaining rights for those public employee union members. Walker, a Republican, had proposed the measure in response to state budget deficits.

However, the law could not go into effect because of a temporary restraining order put in place in March by Sumi.

Sumi, in her ruling March 18, would not allow Secretary of State Doug La Follette to publish the law. At the time, she said a legislative committee violated the Open Meetings Law when it approved a new version of the governor's budget bill during the March 9 meeting.

Sumi reaffirmed her ruling in a final decision last week.

"This case is the exemplar of values protected by the Open Meetings Law: transparency in government, the right of citizens to participate in their government, and respect for the rule of law," she wrote.

"It is not this court's business to determine whether 2011 Wisconsin Act 10 is good public policy or bad public policy; that is the business of the Legislature. It is this court's responsibility, however, to apply the rule of law to the facts before it."

Sumi said the evidence was "clear and convincing."

"This was not a case in which proper notice was missed by a few minutes or an hour. Not even the two-hour notice justified by 'good cause' was provided," she wrote.

"The legislators were understandably frustrated by the stalemate existing on March 9, but that does not justify jettisoning compliance with the Open Meetings Law in an attempt to move the Budget Repair Bill to final action."

Ozanne, in his Wednesday memorandum, says in making its reply arguments in favor of the Court, both granting the petition for writ and proceeding to the merits, Attorney General J.B. Van Hollen, on Huebsch's behalf, has "impermissably" asked the Court to find the state's Open Meetings Law unconstitutional as applied to the Legislature.

"The attorney general is specifically barred from making this type of argument and therefore, for this additional reason, the petition for writ must be dismissed," the district attorney wrote.

Simply put, the legal landscape has changed, Ozanne says.

"Now there is a final disposition that is appealable by right of an aggrieved party," he wrote.

"It is immaterial whether the legal questions posed by Secretary Huebsch remain the same. The enduring character of legal questions does not add to the shelf life of a moot factual situation."

The petition for leave to appeal also is moot, Ozanne argues.

"Like the petition for writ, the petition for leave to appeal involved a challenge to a non-final order issued by the Circuit Court," he explained. "The Circuit Court has proceeded to a final judgment, superseding its previous non-final orders."

Furthermore, he says, an aggrieved party can now pursue an appeal of right from the final judgment.

But the state Department of Justice, in an accompanying letter to the state's high court Friday, said the circuit court has exceeded its constitutional authority "not only in terms of intermeddling with the legislative process and voiding an enactment of the Legislature on grounds of an alleged statutory violation, but also by its deprivation of the defendants' due process rights."

"Every day that the Circuit Court's actions are allowed to stand does serious and irreparable damage to the constitution and the doctrine of separation of powers," wrote Deputy Attorney General Kevin M. St. John.

St. John urged the Court to issue an immediate order directing the circuit court to vacate its final decision. He says the issues have been "fully presented" and are "ripe for decision," so there is no need for oral arguments.

According to an order by the Court, issued Thursday, oral arguments are still set for 9:45 a.m. Monday.

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

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