Dane County judge strikes down collective bargaining law

[Magda Hassan]

Dane County judge strikes down collective bargaining law

By Jason Stein, Patrick Marley and Don Walker of the Journal Sentinel
Updated: May 26, 2011 1:02 p.m. |(1339) Comments
Budget Coverage

Special Section: Ongoing coverage of Gov. Scott Walker's controversial budget-repair bill and the battle over the 2011-'13 state budget





Madison - In a move that hastens a larger showdown, 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 overturn the legislation because GOP lawmakers on a committee broke the state's open meetings law in passing it March 9. The legislation limits collective bargaining to wages for all public employees in Wisconsin except for police and firefighters.
On March 18, Sumi had placed a temporary hold on the law, but Thursday's ruling voided it entirely - at least until the Supreme Court decides whether to act in the case.
"It's what we were looking for," said Dane County District Attorney Ismael Ozanne, a Democrat.
Ozanne sued to block the law after Assembly Minority Leader Peter Barca (D-Kenosha) filed a complaint saying that GOP legislative leaders had not given proper notice to the public in convening a conference committee of lawmakers from both houses to approve Walker's budget-repair bill.
Steve Means, the No. 3 official at the state Department of Justice, said the agency and GOP Attorney General J.B. Van Hollen have been surprised at Sumi's handling of the case, and in a letter Wednesday agency attorneys asked whether Sumi would recuse herself from it.
"Obviously, we're disappointed in the ruling. We do think it reflects a number of legal errors, but it's for the appellate courts at this point," Means said.
Means said courts have no authority to overturn the acts of lawmakers except as granted by the state constitution. He said that Sumi had made her decision without holding a trial or making clear beforehand that no trial would be held.
In that decision, Sumi appeared to be bracing for an outcry from Republicans and supporters of the law, noting that judges are supposed to apply the law even if their decisions will be "controversial or unpopular."
Sumi wrote that Ozanne showed by "clear and convincing evidence" that the open meetings law had been violated and that past lawmakers had intended for their actions to be bound by that law. She also said that the law carried a constitutional force because the state constitution says the doors of the Legislature must remain open when lawmakers are in session.
"The Legislature and its committees are bound to comply with the open meetings law by their own choice. Having made that choice, they cannot now shield themselves from the provisions that give the law force and effect," wrote Sumi, who was appointed to the bench by former GOP Gov. Tommy Thompson.
Senate Majority Leader Scott Fitzgerald (R-Juneau) responded in a statement. "There's still a much larger separation-of-powers issue: whether one Madison judge can stand in the way of the other two democratically elected branches of government. The Supreme Court is going to have the ultimate ruling, and they're still scheduled to hear the issue on June 6. This overdue reform is still a critical part of balancing Wisconsin's budget."
Ozanne agreed that the court case is still far from settled.
"It's not over yet. I'm positive of that," Ozanne said. "The supremes are the supremes. They can do what they want."
In a letter sent to Sumi Wednesday, state Department of Justice lawyers questioned Sumi's decision to file a brief on May 18 with the high court. State Department of Justice lawyers said that Sumi's brief had taken positions on key issues before Sumi in the Ozanne case, such as whether a court can prevent legislation from taking effect.
The Department of Justice letter says that Sumi can no longer be considered impartial in the light of the brief and asks whether she will recuse herself from the Ozanne case.
"I'm not going to say she didn't have the right," Means said of Sumi's decision to file the brief. "She did, but that carries some consequences."
GOP lawmakers such as Fitzgerald also have said they would consider passing the law a second time as part of the 2011-'13 state budget if it was necessary to ensure that it takes effect.
"Act 10 was passed and signed into law in accordance with the rules of the state Legislature," said Assembly Speaker Jeff Fitzgerald (R-Horicon), Scott Fitzgerald's brother. "I remain confident that the Wisconsin State Supreme Court will rule accordingly and Act 10 will become law."
Cullen Werwie, a spokesman for Walker, declined to comment Thursday, saying that because Walker was not part of the legislative votes, the judge's decision did not "concern us." Werwie referred questions to the state Department of Administration.
"We look forward to the reforms of the budget-repair bill being enacted in the near future," Administration Secretary Mike Huebsch said in a statement. "We will continue to pursue legal action with the Supreme Court in an effort to protect middle class jobs and middle class taxpayers."
Barca called the decision based off his complaint a "huge win for democracy in Wisconsin" and urged Republicans not to plug the collective bargaining changes back into the state budget, saying they should instead look for compromise to save money.
"It is not healthy for Wisconsin for us to be such a divided state," he said.
Marty Beil, executive director of the Wisconsin State Employees Union, said the decision was a win for the public because it promotes government transparency.
"I think it's a victory for sunshine, for the citizens of this state, not just us," he said. "Sumi... is basically saying the Legislature is required to follow the (open government) rules they promulgated and enough of this legislative arrogance."
But he acknowledged the Supreme Court could reverse the decision or lawmakers could quickly pass the collective bargaining changes again.
"Do we see this as a permanent victory?" Beil said. "No, but we see it as a victory today."
Wisconsin AFL-CIO official Stephanie Bloomingdale said Walker and the Republican Party broke the law the night they took the vote. "This is a democracy, not a dictatorship, and Judge Sumi's decision today makes it final that the union busting bill was passed illegally and will not stand," Bloomingdale said.
Rick Esenberg, a Marquette University law professor who has followed the case closely, said Thursday he was not surprised that Sumi decided to invalidate the bill but was surprised that she did it now.
"She had clearly indicated that was her view," he said. But "you had the sense that she had established that she wasn't going to rule this early, but apparently she decided she needed to do it."
The case produced testimony from those who said hundreds or even thousands of people were denied access to the March 9 conference committee. All but one entrance to the Capitol was closed by police, one law enforcement officer testified.
The ruling is the latest in a nearly four-month-long drama that looks to continue for much of the year. On June 6, the state Supreme Court will hear arguments on whether to take the case. On July 12, recall elections will be held after lawmakers' stances sparked petition drives around the state to recall them.
Nine senators - six Republicans and three Democrats-- are targeted. The elections put control of the Senate in play.
Republicans have insisted they passed the law correctly.
In addition to the open meetings case, there are two other lawsuits over the measure, and other court challenges could come later. If Republicans eventually succeed on the open meetings argument, the legal battle will shift to whether the legislation itself can be challenged.
Republicans who run both houses of the Legislature intended to pass the collective bargaining bill in February quickly, but were stymied when Senate Democrats left for Illinois. Three weeks later, on March 9, Republicans with little notice created the conference committee to amend the bill so it could be passed in the Senate without any Democrats present.
The open meetings law says 24 hours' notice must be given for most public meetings, but two hours' notice can be given for good cause. No one who testified said any reason was ever given for why the committee had to meet on short notice.
Senate staff testified they posted announcements about the meeting on bulletin boards in the Capitol and sent emails to legislators about it some time after 4 p.m. - less than two hours before the committee was to meet at 6 p.m.
Testimony also showed Republicans discussed forming the committee on March 7 - 48 hours before the committee met. That would have left them time to provide 24 hours' notice for the meeting, but Senate Chief Clerk Rob Marchant testified he did not believe a final decision on creating the committee was made until March 9.
Once the meeting was announced, 20 people were allowed into the small room where the committee held its sole, brief meeting, Senate Sergeant-at-Arms Ted Blazel testified. The room was otherwise filled with legislative staff and members of the media.
After people were barred from entering the room, those trying to get in started a spontaneous petition to make a record of what happened. It was signed by 2,967 people.
Barca was the only Democrat at the meeting, and he pleaded with the Republicans to halt the session because he believed they were violating the open meetings law.
One of the many legal questions raised in the case is legislative immunity. The lawmakers accused of violating the open meetings law cannot be sued during the legislative session.