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    In Wisconsin, All Senate Votes Must Take Place In Front Of Screaming Mobs

    In Wisconsin, All Senate Votes Must Take Place In Front Of Screaming Mobs

    That apparently is where the case is heading.

    According to reports, the testimony before Judge Sumi this morning regarded, in part, the fact that the March 9 Senate Committee meeting to re-work the budget bill (because 14 Democrats had fled), took place in a small room which only could hold 20 spectators, and access to the Capitol was restricted to a single entrance for crowd control purposes (and even then, a closed entrance was breached).

    This, the Democratic District Attorney who brought the lawsuit claims, was a breach of the Open Meetings Law and even Senate Rules.  The D.A. called a witness to testify that 3000 people wanted to attend but were denied, as reported by JSOnline:

    Nearly 3,000 people tried to get into a key March 9 legislative conference committee meeting, but were unable to do so, a witness testified Friday in Dane County Circuit Court.

    Rich Judge, chief of staff to Assembly Minority Leader Peter Barca (D-Kenosha), said 2,967 signed their names on a spontaneous petition when they couldn’t get into the meeting where Republican legislators quickly passed a controversial portion of Gov. Scott Walker’s budget-repair bill. The petition was dropped off at Barca’s office.

    Clearly, the committee meeting should have taken place in a stadium, so that all these people — who trapped a Republican Senator outside the Capitol on March 1, could have attended:

    Update 3:45 p.m. Eastern – The court concluded the hearing. No ruling was made as to whether there was an Open Meeting Violation (and thus no court ruling on the D.A.’s charges with regard to room and building access), but the Judge continued the TRO against the Secretary of State until the case concludes saying she had heard nothing that would cause her to vacate the TRO.

    This means that the “temporary” injunction will remain for at least several weeks, because the necessary parties, namely the legislators, have immunity during and for a period of time before and after the legislative session which starts next week. The Court requested briefing on that issue and the merits of the case, with the final briefs not due for about 7 weeks.

    I hate to make gloomy predictions, but based on the court rulings so far, it is likely Judge Sumi will find an Open Meetings Violation.

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    "If Wisconsin doesn't get its budget under control, due to an activist judge who has clearly overstepped her bounds, you can expect to see a mass exodus of those who do NOT belong to the public sector unions and who are willing to take their businesses to RTW states."

    Except the polling shows pretty substantial and often majority support for the union position in Wisconsin:

    http://www.wpri.org/polls/March2011/poll0311.html

    http://www.rasmussenreports.com/public_content/politics/general_state_surveys/wisconsin/wisconsin_poll_support_for_budget_cutting_not_for_weakening_collective_bargaining_rights

    Looks like it's time for Gov. Walker to send out those layoff notices that were ready to go out in March.

    I've linked to the following case before, and in my purely personal opinion, it has quite recent precedential value on the question of jurisdiction, and relevance to this matter.

    In the 2009 case of Milwaukee Journal Sentinel v. DOA, found here, the Wisconsin Supreme Court enunciated the outlines of an important principle of court jurisdiction — i.e., the power of courts to review and to act — in cases involving the interplay of both internal legislative rules of proceeding, statutory construction, and constitutional adjudication.

    As best as I was able to follow the proceedings yesterday (and I was not there) it seemed to me that there may be some serious questions the parties thereto may end up examining, as to whether Judge Sumi appropriately confined the proceedings within those constitutional boundaries.

    I say that because of her continued allowance of testimony, elicited by the DA, regarding purely internal legislative discussions, and witness opinions regarding their views of compliance (or not) with internal House, Senate and Joint rules of proceeding.

    Because of that, my personal sense was that the judge may have overstepped the limited bounds of such jurisdiction, ones so recently enunciated by the Wisconsin Supreme Court.

    Here is why I think so.

    In the Milwaukee Journal Sentinel v. DOA case, the Wisconsin Supreme Court restated the long recognized principal that Courts do indeed have the authority or jurisdiction to interpret whether any statute complies with relevant constitutional directives.

    They added that "even if the statute might otherwise be characterized as a legislative rule of proceeding, we may interpret the statute and apply it to the legislative action to determine whether that action complies with the relevant constitutional mandates."

    Thus, if the state constitution requires an action or forbearance on the part of the legislature, and an otherwise "purely" internal legislative rule permits or commands otherwise, the Court may appropriately take remedial action to underscore the requirements of the constitutional directive, including, where necessary, ruling on the constitutionality of a legislative rule.

    But the Court set the permissible boundary of judicial review and remediation at the doorstep of otherwise purely legislative prerogatives.

    Here was how they put it, at page 12:

    . . . Article IV, Section 8 of the Wisconsin Constitution states in pertinent part that "[e]ach house may determine the rules of its own proceedings." Rules of proceeding have been defined as those rules having "to do with the process the legislature uses to propose or pass legislation or how it determines the qualifications of its members." Custodian of Records for the LTSB v. State, 2004 WI 65, ¶30, 272 Wis. 2d 208, 680 N.W.2d 792. We have interpreted Article IV, Section 8 to mean that the legislature's compliance with rules of proceeding is exclusively within the province of the legislature, because "a legislative failure to follow [its own] procedural rules is equivalent to an ad hoc repeal of such rules, which the legislature is free to do at any time." Id., ¶28. Accordingly, courts will not intermeddle in purely internal legislative proceedings, even when the proceedings at issue are contained in a statute. State ex rel. La Follette v. Stitt, 114 Wis. 2d 358, 364, 338 N.W.2d 684 (1983).

    In other words, recent precedent of the Supreme Court of Wisconsin strongly suggests that courts are not free at all to examine the purely internal workings of the legislative process, including interpreting the compliance or non-compliance with legislative rule(s), except insofar as those rules may impinge on constitutional requirements.

    I suppose I should have added in my above comment that, although I was not there at the hearing, I was (on the recommendation of Professor Jacobson), following the Twitter feed of reporter Jessica Arp of WISC-TV in Madison, WI, who indeed was there, and who, I might add, quite thoroughly documented the identification of the various witnesses, as well as much of the content of their testimony during those proceedings.

    She also quite helpfully answered many followers' questions that were submitted during the course of the hearing as well.

    Thank you, Jessica! Good job!

    What is described here, as "incompetence" may also be a fundamental Republican timidness, similar to what we see in D.C. The people, who organized and voted in Republican majorities around the country want action now, and they look forward to having fights if necessary. Timid behavior by the elected Republicans is not well received.
    I hope that Prosser wins on Tuesday and that the Republicans then repass the bill.


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