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    Judge Sumi Rules Budget Repair Bill Not In Effect

    Judge Sumi Rules Budget Repair Bill Not In Effect

    Judge Maryann Sumi has issued this morning a two-page ruling saying the budget repair bill is not in effect.  Via JSOnline:

    A state law to sharply curb union bargaining by public employees is not in effect, a Dane County judge ruled Thursday, continuing the turmoil over a measure that sparked massive protests and prompted Democrats to boycott the Senate for three weeks

    “Based on the briefs of counsel, the uncontroverted testimony, and the evidence received at the March 29, 2011 evidentiary hearing, it is hereby DECLARED that 2011 Wisconsin Act 10 has not been published within the meaning of (state statutes), and is therefore not in effect,” Dane County Circuit Judge Maryann Sumi ruled in a two-paragraph order.

    This decision, without any reasoning, puts in context the warning Judge Sumi issued yesterday to attorneys in the case about making remarks which impugn her integrity.  Presumably Judge Sumi knew that this Order would be coming the next day, and also knew the political firestorm that would result.

    Before speaking publicly about what is an extraordinary judicial interference in the legislative process, attorneys for the State will have to consider the import of Judge Sumi’s warning.

    Updates:  I find it very curious that Judge Sumi felt the need to issue this Order today, when further hearings are scheduled tomorrow.

    As Ed Morrissey notes, this is the third version of the TRO in this case.

    And, keep in mind that at the end of the day Tuesday, Judge Sumi refused to sign an order containing virtually identical lanauge regarding whether the law was in effect:

    So how, with no new evidence, does she reach the legal conclusion that the law was not published? 

    Perhaps it’s just the passage of time to reflect on the issue, or perhaps it was frustration with what she saw as non-compliance with the first part of the order directing the Secretary of State not to publish and (some unspecified persons) not to implement the bill.  If it were the latter reason, then achieving compliance as to implementation would not require a finding of non-publication.

    What a mess.  But I repeat myself.

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    Her title is County Circuit Court judge. As far as I know, that's a court of unlimited jurisdiction similar to the Circuit Courts in Virginia as opposed to the County Courts in New York, which are limited in their jurisdiction.

    I would take her indignation over a possible procedural error in posting a meeting notice a lot more seriously if she didn't keep botching up and having to rewrite her TRO.

    How long before we act to end Judicial Review–something that even conservatives accept as gospel– but which was not envisioned in our Constitution (and against which Jefferson strongly warned)?!

    It's one thing to allow the Supreme Court to weigh in on things– but it's another to let any little judge act as judge and executioner on a law. Separation of Powers dictates that Judges are to rule BETWEEN litigants USING the laws; not USE litigants and cases just to rule ON or AGAINST the laws!

    jakee308 | March 31, 2011 at 7:30 pm

    The time she took was to confer with the real plaintiffs and their counsel; Barack Obama, the national Unions and the DNC.

    Most discussion so far has focused on the important Wisconsin constitutional requirement [Article IV, Section 17(2)] that "No law shall be enacted except by bill. No law shall be in force until published."

    But pursuant to the 1979 state constitutional mandate, following immediately thereafter, is the additional requirement mandating the speedy publication of all laws, to wit: "The legislature shall provide by law for the speedy publication of all laws." [Article IV, Section 17(3)].

    The implementing statutory laws of the State of Wisconsin for that mandate [ variously Wis. Stat 14.38(10)(a); 35.095(3)(a) and (3)(b); and 13.92(1)(b)(4) ] currently specify that no later than the next working day, following his actual receipt of a passed act in his office, the Secretary of State is required to provide notice to the Legislative Research Bureau of the number of the act, the date of enactment and the specified date of publication, the latter of which may not be more than 10 working days from the date of enactment. Actual publication in any case is performed by the Legislative Research Bureau. The Legislative Research Bureau is required to publish every such act within that 10 day window.

    In other words, the Secretary of State does not publish the law! All he does is perform the purely ministerial duty of designating a specific date on which the law shall be published, and that publishing is, thereupon, performed by the Legislative Research Bureau!

    Most importantly in this case, Secretary of State LaFollette actually performed that ministerial duty on March 14th, specifically designating March 25th as the date of publication (10 days after enactment). The law itself was ultimately duly published on March 25, 2011.

    For many of the specifics, just read through this:

    Where does Wisconsin law give the Secretary of State any authority to rescind such an action?

    Is not his attempt to do so in this case, arguably unconstitutional?

    It looks to me like it was an improper attempt to rescind the ministerial function, one which he had already performed! Just because he used the judge’s initial TRO as a basis for attempting to rescind the notice (thereby giving himself political cover) is really beside the point.

    No wonder the Judge does not want to provide any findings supplemental to her orders! She would not be able to cite a convincing factual, (or I would suggest) even a coherent legal basis on which her orders are built!

    All of the steps for meeting the constitutionally mandated publication were met. The only real fly in the ointment was the subsequent interference of Judge Sumi, via TRO, now improbably declaring that what happened actually never happened! It was properly published!

    In the recent (2009) case of Milwaukee Journal Sentinel v. DOA the Supreme Court of Wisconsin very thoroughly detailed what the purpose of publication was and is. That purpose has been more than fully met as well!

    Perhaps at some point, the Wisconsin Administration might even give some consideration to seeking the "extraordinary remedy" of a Writ of Prohibition at 783.08 to put an end to this travesty.

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