Attorney general appeals restraining order on labor law: Van Hollen asks appeals court to lift judge's temporary order

Madison - In a case that appears bound for the state Supreme Court, Attorney General J.B. Van Hollen on Monday asked the state appeals court to lift a Dane County judge's hold on a law sharply curtailing public union bargaining.

The Court of Appeals panel in Madison quickly responded Monday by asking for information from the prosecutor on the other side of the case by the end of Tuesday, but didn't explicitly say it would take the appeal.

Justice Department lawyers argued that Dane County Circuit Judge Maryann Sumi's ruling was an overreach against the Legislature as a separate branch of government. "In the interests of the administration of justice, it is necessary - nay, it is imperative - that this court step forward and undo this inappropriate action," the request reads.

Last week, Dane County District Attorney Ismael Ozanne asked Sumi to block the law because he said the legislative conference committee that voted on the measure violated the state's open meetings law by failing to provide adequate public notice. The conference committee voted for the bill earlier this month, allowing the Legislature to pass it amid raucous demonstrations and Walker to sign it into law.

On Friday, Sumi issued a temporary restraining order blocking Secretary of State Doug La Follette from publishing the budget-repair law until she can rule on the merits of the case. The law, which repeals nearly all collective bargaining for public workers in the state, can't become effective until one day after it is published.

Before Sumi's action, La Follette had been planning to publish the measure in the official state newspaper, the Wisconsin State Journal, on March 25, the date required by law. La Follette, a Democrat and an opponent of the law, says he can't remember being ordered to not publish a law in some three decades in office.

Hearings on the injunction before Sumi are scheduled for March 29 and April 1.

Technically, Monday's filing by Van Hollen is asking for permission to appeal the restraining order, since the case in Dane County is continuing and the appeals court doesn't have to take up any appeal until the case is finished.

The case is before Court of Appeals Judges Paul Higginbotham, Paul Lundsten and Brian Blanchard. Blanchard served as the Democratic district attorney in Dane County before Ozanne.

The order from the judges Monday gave Ozanne until 4 p.m. Tuesday to provide part of his response to the state and until 4 p.m. Wednesday to provide the rest.

Ozanne didn't return messages seeking comment on the appeal.

In its appeal Monday, the state made several main arguments. First, the state argued that the court has no jurisdiction over GOP legislative leaders being sued or over La Follette because they all enjoy legal immunity.

The state constitution gives legislators immunity from lawsuits during the legislative session. La Follette, the state said, can't be the subject of a legal action because he wasn't involved in the committee vote in question.

Hold called interference
Second, the state argued that the court can't block a bill that hasn't yet been published into law because that amounts to interfering with the Legislature in its area of responsibility of passing laws. The appeal cited a 1943 Supreme Court decision that it said forbids courts to block a legislative measure from being published.

The order from the appeals court directed Ozanne to respond to this specific argument from the state by Tuesday.

Last, the state argues that the courts can't block or strike down a law passed by the Legislature purely on the basis of lawmakers failing to follow legislative rules or the open meetings law. Citing a 1983 state Supreme Court ruling, the appeal said that courts can strike down laws only if lawmakers failed to follow the state constitution.

Howard Schweber, a professor of political science and legal studies at the University of Wisconsin-Madison, agreed that laws can't be struck down because the Legislature didn't follow its rules in passing them. But Schweber noted that Sumi hadn't struck down the law, only restrained a state official from publishing it.

"They're trying to make this an argument about the authority to strike down a law. But that's not what's going on here," he said.

Likely to go to high court
Schweber said he assumed the case would end up before the Supreme Court. In its appeal, the Department of Justice had asked the appeals court to send the case to the Supreme Court if it doesn't take the case.

Robert Dreps is an attorney who handles open meetings and open records cases for media organizations including the Journal Sentinel. He noted that even if the law stands, the court might still have the authority to seek a financial penalty for lawmakers who violated the open meetings law.

Ozanne is seeking a $300 fine plus court costs and attorney's fees from the four GOP legislative leaders on the committee. They are: Senate President Mike Ellis of Neenah, Senate Majority Leader Scott Fitzgerald of Juneau, Assembly Speaker Jeff Fitzgerald of Horicon and Assembly Majority Leader Scott Suder of Abbotsford. The Fitzgeralds are brothers.

In temporarily blocking the law from being published, Sumi said Friday she believed that Ozanne was likely to succeed in his action. But she also said the Legislature would be free to pass the law again with adequate public notice.

Sumi said Friday that the importance of enforcing the open meetings law outweighed the interest, at least for now, of sustaining the collective bargaining law.

Dispute over notice needed
Wisconsin's open meetings law requires 24 hours' public notice of meetings, or two hours in emergencies. Ozanne on Friday argued that the emergency standard did not apply and that even if it did, the meeting didn't follow the law because the conference committee met with less than two hours' notice.

Assistant Attorney General Maria Lazar said Friday that a notice for the meeting was posted on a bulletin board about two hours in advance and that there was no way to know exactly when it was posted.

In its appeal Monday, the state also argued that there was an exception in the open meetings law for legislative rules. GOP lawmakers say that their legislative rules didn't require the same advance notice and that they followed those rules.

Public access
Ozanne also argued that the meeting violated the law because the public had difficulty getting into the Capitol amid tight security and because it was held in a small room that could not accommodate the large crowd trying to get in. Sumi on Friday took note of that, pointing out the state constitution requires the doors of the Legislature to be open when lawmakers are in session.

The Republican lawmakers have said there was adequate public access to the meeting.

The budget-repair measure was meant to shore up the state's finances through June 30 but drew widespread opposition because of the collective bargaining changes. It stalled when Senate Democrats left the state Feb. 17 to block action on the measure. The state constitution requires 20 of 33 senators to be present to vote on bills with certain fiscal elements, and Republicans hold just 19 seats.

After three weeks, Republicans quickly convened a conference committee March 9 to strip appropriations out of the bill. They said the changes to the bill meant they no longer needed 20 senators to be present.

The four Republicans on the conference committee voted for the bill as they ignored shouts by the lone Democrat at the meeting, Assembly Minority Leader Peter Barca of Kenosha, that they were violating the open meetings law. The Senate passed it minutes later with no Democrats present as protesters jammed the halls of the Capitol.

JS online, Mon Mar 21 2011
Byline: Jason Stein and Lee Bergquist

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