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Wis. SC rules for gov in budget bill issue

By Jessica M. Karmasek | Jun 15, 2011


MADISON, Wis. (Legal Newsline) - The Wisconsin Supreme Court on Tuesday upheld Gov. Scott Walker's controversial Budget Repair Bill.

The Court, in its nine-page majority opinion, said its decision was "grounded in separation of powers principles" and was not affected by "the wisdom or lack thereof evidenced" in the bill.

Just last week, the Court listened to oral arguments in the ongoing legal challenge to the measure.

Dane County District Attorney Ismael Ozanne argued that the state's high court no longer needed to intervene in the case. He contended that Dane County Circuit Court Judge Maryann Sumi's final judgment and order rendered moot a petition for supervisory writ and a petition for leave to appeal filed by the State and Michael D. Heubsch, secretary of the Wisconsin Department of Administration.

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."

The Supreme Court was then faced with deciding whether Sumi exceeded her authority.

The state Department of Justice argued 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," Assistant Attorney General Kevin St. John wrote in a recent letter to the Court.

The Court concluded that the Legislature did not violate the Wisconsin Constitution by the process it used.

Under Article IV, Section 10 of the constitution, "the doors of each house shall be kept open except when the public welfare shall require secrecy."

The doors of the senate and assembly, the Court said, were kept open to the press and members of the public during the enactment of the bill. The doors of the senate parlor, where the joint committee on conference met, were open to the press and members of the public. WisconsinEye broadcast the proceedings live, it noted.

"Access was not denied," the Court wrote. "There is no constitutional requirement that the legislature provide access to as many members of the public as wish to attend meetings of the legislature or meetings of legislative committees."

The Court, in its ruling, declined to review the validity of the procedure used to provide notice of the March 9 meeting.

"As the court has explained when legislation was challenged based on allegations that the legislature did not follow the relevant procedural statutes, this court will not determine whether internal operating rules or procedural statutes have been complied with by the legislature in the course of its enactments," it wrote.

The Court also found that the circuit court exceeded its jurisdiction, invaded the Legislature's constitutional powers and erred in enjoining the publication and further impementation of the bill.

"Choices about what laws represent wise public policy for the State of Wisconsin are not within the constitutional purview of the courts," it wrote. "The court's task in the action for original jurisdiction that we have granted is limited to determining whether the legislature employed a constitutionally violative process in the enactment of the Act."

Chief Justice Shirley S. Abrahamson and justices Ann Walsh Bradley and N. Patrick Crooks concurred in part and dissented in part from the Court's majority opinion, authored by Justice David Prosser.

Prosser recently won reelection to the Court after a heated race against state Assistant Attorney General JoAnne Kloppenburg, who earlier this month conceded defeat.

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

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