Arguments held over Wis. budget bill

By Jessica M. Karmasek | Jun 6, 2011


MADISON, Wis. (Legal Newsline) - The Wisconsin Supreme Court listened to oral arguments Monday morning in the ongoing legal challenge to Gov. Scott Walker's controversial Budget Repair Bill.

Arguments lasted about two hours. Assistant Attorney General Kevin St. John argued on behalf of the State and Michael D. Heubsch, secretary of the Wisconsin Department of Administration. Dane County District Attorney Ismael Ozanne also made arguments.

Ozanne, in a court filing last week, argued that the state's high court no longer needed to intervene in the case. He contends that Dane County Circuit Court Judge Maryann Sumi's final judgment and order renders moot a petition for supervisory writ and a petition for leave to appeal filed by the State and Heubsch.

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 her May decision. "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."

Now, the question for the Supreme Court is whether Sumi exceeded her authority.

The state Department of Justice argues that the circuit court did, indeed -- "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," St. John wrote in a recent letter to the Court.

In a follow-up letter to the Court filed Friday, St. John argued that an appeal is not an available remedy. Ozanne, in his filing last week, said an aggrieved party can now pursue an appeal of right from Sumi's final judgment.

"An appeal of the circuit court's decision may not be an effective remedy for several reasons. First, as was true in the case below there are no true adverse parties and there is no justiciable issue," St. John wrote. "Next, assuming there was someone to file an appeal, an appeal would accomplish nothing but delay."

LaFollette, in his own filing Friday, addressed Sumi's decision and the appeals process.

The secretary of state said there is no reason to bypass the appellate process in this case.

"The remedies afforded by the Wisconsin Open Meetings Law, which include legal or equitable relief, mandamus, injunction or declaratory judgment, are adequate in this case," he wrote.

"One of the statutory remedies for violation of the statute is to void governmental actions taken in violation of the Wisconsin Open Meetings Law. The circuit court, in the exercise of its discretion, chose one of the available remedies afforded under the Wisconsin Open Meetings Law."

LaFollette also said there is "no compelling reason" for the Supreme Court to exercise original jurisdiction, where a circuit court has applied a plainly statutory remedy.

"The appellate process is preferable to the exercise of original jurisdiction since the entire circuit court record is available for review, rather than the limited record before the Supreme Court at this time," he wrote.

Following Monday's oral arguments, the Court will issue a written decision at a later date.

Others who made oral arguments Monday include: Marie A. Stanton, representing Sumi; Robert J. Jambois, for state Rep. Peter Barca; Lester A. Pines, for state Sen. Mark Miller; and Roger Sage, representing LaFollette.

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

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