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    Wisconsin Judge Expands TRO, Prohibits Implementation of Budget Bill

    Wisconsin Judge Expands TRO, Prohibits Implementation of Budget Bill

    Based on reports from inside Judge Sumi’s courtroom, it appears that she has issued an expanded TRO ruling that the budget bill is not in effect and was not “published” as required, and enjoins further implementation.

    Correction: Per local news reporter, initial reports that Judge found law not in effect were not correct. But TRO continues to prohibit Secretary of State from publishing, so it appears she is viewing the bill as not in effect yet, even if she did not explicitly rule.

    Updates:  Per JSOnline:

    A Dane County judge Tuesday blocked the state from implementing Gov. Scott Walker’s collective bargaining bill.

    “Further implementation of the act is enjoined,” said Dane County Judge Maryann Sumi.

    She noted her original restraining order issued earlier this month was clear in saying that the state should not proceed with implementing the law. The Walker administration did so after the bill was published Friday by a state agency not included in Sumi’s earlier temporary restraining order.

    “Apparently that language was either misunderstood or ignored, but what I said was the further implementation of Act 10 was enjoined. That is what I now want to make crystal clear,” she said.

    She noted she has not yet found that lawmakers violated the open meetings law, but noted the Legislature could resolve the matter by passing the bill again.

    The Amended TRO now is available.  It is only two pages long, and apparently was prepared as to form by the Democrats (this is common in court cases that one side prepares the form of order), because Judge Sumi struck out the portion as to publication:

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    This is the most serious separation of powers issue I have encountered in my adult lifetime. There is no precedent to support the position that the judicial branch has legal authority to interfere with legislative process of enacting a law or the executive procedure of signing an Act. Judge Sumi has not one leg to stand on for her interference in the functions of the legislative and executive branch. Impeachment hearings are appropriate.

    Professor, is the TRO you published the complete order? By its own language it applies only to the Secretary of State. It does not bind the rest of the Administration from implementing the Act. Judge Sumi seems to be operating on the presumption that the Act is not in effect, but if that is her presumption why did she scratch the paragraph on the second page of the TRO? She appears to be utterly incompetent.

    Governor Walker and the legislature should procure a formal opinion from the Attorney General regarding when an Act enters into effect and proceed without regard to the TRO. The legislature should file a separate lawsuit to compel the Secretary of State to publish the Act, then should initiate impeachment hearings for Judge Sumi.

    The Wisconsin Bar must be mortified at the shocking incompetence on display throughout this entire debacle.

    @Blythe_masters – that's the entire Amended TRO but you have to read it together with her comments from the bench in which she threatened sanctions if there were any further implementation of the law by anyone.

    I would love to see Walker and the GOP in WI call Sumi's bluff and pass the law again. We know at least one dem has said he won't run out again, and is working on legislation to keep fleebagging from happening again. Call their bluff, make them vote on it, and take this ridiculous judge out of the equation entirely.

    @ Professor Jacobson,

    Thank you for the confirmation. Yes, the verbal threat of sanctions from the bench is one of the many oddities of her management of the case. Precisely how would the good judge propose to enforce sanctions against members of the Administration who appear not to be parties to the suit and who, in any case, are explicitly omitted from the written TRO?

    And what to make of the bizarre scratching of the second paragraph? Does she concede that the act is now in effect? Has she simply gone mad? Does she not know how to draft a TRO?

    I reviewed the first TRO while writing this comment. Clearly, the judge drafted the first TRO without understanding the statutory framework relating to publication in Wisconsin and without an understanding of the mechanics of how publication is implemented. In short, she biffed it–she enjoined the Secretary of State from publishing the Act.

    Now she appears deliberately to be provoking Constitutional crisis in Wisconsin. Neither Walker nor the Wisconsin legislature can back down without ceding powers of their respective branches to the judiciary. The AG needs to intervene to issue an opinion immediately.

    Also, the Wisconsin Secretary of State has a duty to the Office to oppose this ruling. However, it appears he has been complicit in undermining the authority of his Office. If this is the case he should be impeached.

    Shocking incompetence at every turn.

    As noted in part by, @geoffb, above in the recent (2009) case of Milwaukee Journal Sentinel v. DOA, found here, the Wisconsin Supreme Court stated very clearly what the constitutional purpose of publication was, and is:

    At page 20:
    ¶32 Publication is the other requirement of Article IV, Section 17(2).

    Nearly, 150 years ago, we noted the purpose of the constitutional publication requirement is the protection of the people, by preventing their rights and interests from being affected by laws which they had no means of knowing.
    . . . .
    (my emphasis added)

    and, at page 22:

    ". . . However, although it is true that the public may have had the opportunity for input in the ratification of the agreement at the public hearings, and some citizens may thereby have been put on notice of the collective bargaining agreement's terms, the mere fact of a public hearing is insufficient to satisfy the constitutional requirement of publication. This is so because the purpose of publication is to give sufficient notice to the general public that the legislature has enacted new law. . . ." (my emphasis added)
    and at page 23:

    ". . . the publication requirement is meant to avoid the situation where "the people . . . have their rights sacrificed by the operation of laws which they are bound to know, but have no means of knowing . . . ." (citation in original; my emphasis added)

    At this point, given the publication of the full law by the Legislative Research Bureau, coupled with the significant notoriety in newspapers and throughout the media that has been given to that fact of such "full publication," it is really beyond risible for anyone to claim that the purpose of publication has not been met, just because the Secretary of State, for seemingly mischievous reasons, refuses to perform what is an important, but essentially a ministerial function.

    That notoriety, incidentally, has been more than occasioned by the non-stop squawking about it by Democrats and the unions themselves!

    But for a judge to use injunctive power to prevent an official from performing an essentially ministerial function, is turning the purpose of granting injunctive relief on its head. If, for example, a official were refusing to perform a statutory or constitutional ministerial function, i.e., simply refusing to perform their duty, a judge could quite properly order them to perform that duty.

    But ordering an official not to perform their statutory or constitutional duty, for the obvious purpose of thereby preventing an otherwise fully enacted law from going into effect, is simply an outrage.

    And by literally taunting the Republicans to pass the bill again via her comment that she had not yet ruled on whether they had violated the "open public meetings" law, strongly suggests that she has fully entered the political thicket, and is pursuing a strategy that seems suspiciously coordinated with that of the minority Democrats in the legislature.

    By the way, given their lengthy "frolic" in Illinois, and string of other dilatory tactics, one wonders what ever happened to the "clean hands" doctrine when it came time for the Democrats to seek equitable relief?

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