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    Judge Sumi Throws Out Wisconsin Collective Bargaining Law

    Judge Sumi Throws Out Wisconsin Collective Bargaining Law

    No surprise here.

    Judge Maryann Sumi has issued a ruling throwing out the Wisconsin collective bargaining law based on an alleged failure to comply with the state Open Meetings Law.  Unlike prior rulings, which were based on a “likelihood of success” standard in connection with emergency injunctive relief, this is a full ruling on the merits.

    As reported by JSOnline (h/t reader James):

    A Dane County judge has struck down Gov. Scott Walker’s legislation repealing most collective bargaining for public employees.

    In a 33-page decision issued Thursday, Dane County Circuit Judge Maryann Sumi said she would freeze the legislation because GOP lawmakers on a committee broke the state’s open meetings law in passing it March 9.

    The full decision is here.  Her findings of fact are here.


    Having read through the decision, it is clear that Judge Sumi glossed over some key problems in her attempt to interfere in the middle of legislative action.  Remember, she issued an injunction previously to stop the law from taking effect, in essense stopping the legislature from being the legislature. 

    It is one thing for a court to rule on the validity of a law, but quite another thing for a court to stop the legislature from making law.  Judge Sumi gives short shrift (at pp. 13-14) to the key Wisconsin case which says courts must await a law coming into effect before ruling on the law, Goodland v. Zimmerman.  Judge Sumi summarily dismisses the import of Goodland by stating that it was a pre-Open Meetings law ruling.  Well, chronologically yes, but the principle is the same; courts rule on legislation, courts do not stop legislation from being made.

    On the merits, Judge Sumi takes an expansive view that all that flows from an Open Meetings violation is subject to being voided.  The alleged violation took place at a committee meeting which merely moved the legislation to a full vote.  The actual vote approving the legislation complied with the Open Meetings Law under any scenario.

    Beyond these procedural problems, Judge Sumi made a fundamental — and unbelievable — mistake.  Judge Sumi found (Opinion at page 10, Findings of Fact and Conclusion of Law no.79) that there was “no conflicting Senate” rule which would contradict Open Meetings Law time requirements. 

    But there was such a rule, Senate Rule 93(2), which provides that no notice to the public, other than posting on a bulletin board, is needed for a committee meeting when the Senate is in special session.  In her findings of fact (nos. 15, 29, 57), Judge Sumi found that the Senate was in special session at the time of the committee meeting at issue.

    At no point in her decision does Judge Sumi address Senate Rule 93.  If there were an argument why Rule 93(2) was not a conflicting rule of the Senate, one would have expected Judge Sumi to address it.  I’d have to go back to the briefs to see how the parties (which did not include the legislators themselves) dealt with Rule 93(2), but certainly Judge Sumi is on notice of the Senate Rules and should have addressed Rule 93(2).

    More:  Marquette Law Professor Rick Esenberg discusses the ruling in this podcast.

    And, this is not good.  Yesterday the Wisconsin Department of Justice wrote to Judge Sumi inicating that she needed to recuse herself and asking her not to make any rulings in the case until she ruled on the recusal issue, and today she issued her ruling.  Details here (h/t Charlie Sykes).

    [Note: Changes and additions were made to the original text of this Update.]
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    The "Goodland was a pre-Open Meetings case" is a bunch of horse manure. The claim by governor Goodland, both in his attempt to stop publication of the act and his subsequent attempt to stop enforcement of the law, was that the Assembly used a process called "pairing", where someone who would vote aye finds someone who would vote nay, and neither actually records an aye or a nay, to circumvent the constitutional requirement of 2/3rds present to override a veto.

    Specifically, Goodland vetoed a bill that gave the Supreme Court total control over the Wisconsin bar, and had the 10 "paired" votes been counted as 5 ayes and 5 nays, the Assembly would have failed to override his veto. Mostly because the bill gave the Supreme Court total control over the bar, they ingored the fact that there were "paired" votes in both suits.

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