Saturday, April 9, 2011
Essay by Patriot Daily News Clearinghouse
The Walker Administration is asking the State Supreme Court to vacate a temporary restraining order issued by Dane County Judge Maryann Sumi. This TRO barred implementing Gov. Walker's anti-union law.
Wisconsin Department of Administration Secretary Mike Huebsch Thursday petitioned the Supreme Court for an order to vacate a temporary restraining order by a Dane County judge that barred implementation of the bill, known as Wisconsin Act 10.
He also asked for a stay of the temporary restraining order and any further proceedings by the circuit court while the Supreme Court reviews the case.
He also sought the dismissal of the action filed by Dane County District Attorney Ismael Ozanne.
The Walker administration also argued in its petition that the anti-union law is "in force."
Walker filed a petition for supervisory writ, asking the court to "exercise its supervisory jurisdiction over a court and the judge." [Wisconsin Statutes, Section 809.71] The Supreme Court "will not exercise its supervisory jurisdiction where there is an adequate alternative remedy."
The reason the Department of Justice filed this unusual writ is because it cannot file an appeal because it no longer represents the Secretary of State, who was their only active defendant given the lawmakers have invoked legislative immunity. Last week during the hearings before Judge Sumi, Secretary of State La Follette essentially fired the Department of Justice lawyers and hired his own attorney. La Follette was angry that they had filed an appeal without consulting him, and that they were not asking his questions of the witnesses at this hearing. One impact of La Follette obtaining his own lawyer is that the DOJ lost the right to appeal the TRO order:
Steven Means, executive assistant to Attorney General J.B. Van Hollen, said on Tuesday that the AG couldn't appeal the order Sumi issued that day because it no longer represents any active defendant in the case.
In its petition to the Supreme Court, the Walker Administration is claiming that Judge Sumi did not have legal authority to "stop the legislation before it becomes law."
The petition asserts that courts cannot invalidate legislative acts for alleged failures to follow procedures and cannot prevent legislation from becoming law.
Walker seeks a declaration that a "court may not enjoin the legislative process by restraining actions necessary for a legislative act to become law."
The Walker administration wants the Supreme Court to immediately stay the TRO based on financial damages to the state caused by the failure to be able to implement the anti-union law:
The petition also asks the court to immediately stay Sumi’s March 31 restraining order, citing lost fiscal savings to the state from being unable to implement changes to worker pay and benefits made by the union law. It estimates the savings to be $30 million this year and $300 million in the 2011-13 budget.
“Further delay negatively impacts the state’s fiscal health by not achieving these savings,” the petition states.
The Walker administration also asks the Supreme Court for a declaration that "a claim under the Open Meetings Law does not allow for the invalidation of an act of the State Legislature." The petition states the principle that courts may not "strike down an act passed by the Legislature on the basis of an alleged failure to follow a rule of legislative procedure where such rule is not mandated by the Constitution." Of course, District Attorney Ozanne's legal theory is that the open meetings law is based on two constitutional mandates. The Walker administration states that the open meetings law applies to the Legislature but "an alleged violation" of this law "cannot form the basis for invalidating an Act of the Legislature."
The Walker administration also argues that the lower court does not have personal jurisdiction over the 4 GOP defendants. This argument is based on the fact that the GOP lawmakers have legislative immunity from civil process and they claim that this immunity will not expire until May 2012. At the last court hearing held by Judge Sumi, she asked the parties to prepare legal briefs on 3 questions to determine whether the case can move forward while the lawmakers invoke immunity:
She also asked them to answer three questions - whether an officer’s immunity would allow for the monetary penalty portion to be split from a declaratory relief order; if the court can move to judgement, even if indispensable parties are not present, and whether the time limits for the DA to serve papers on parties continues to run while immunity remains in effect.
District Attorney Ozanne also indicated that he would cover the issue of when would the lawmakers not be covered by legislative immunity in his briefs. Ozanne stated last week that "there is a window in July and in December when lawmakers are not in session, so there is a possibility they would not be protected by legislative immunity."
The Walker administration is also flipping back to its argument that the anti-union law is now in force. It claims that the TRO issued by Judge Sumi to enjoin publication of this law was "legally ineffective." Walker is arguing that it is the Legislative Reference Bureau, not the Secretary of State, that has the statutory authority to publish laws and that the Secretary of State's statutory duties "relate to, but do not constitute publication of an act." As I have discussed in other diaries, the statutes, and State Supreme Court decisions have indicated that it is the Secretary of State who must publish a law for the law to take effect and the LRB simply does prep and printing work for this publication of the laws.
Given the late hour, I did a quick perusal of the petition, which seemed to generally have the same arguments and cases that were argued before Judge Sumi.
update: Secretary of State also asked Supreme Court to drop appeal that Justice Dept. filed in his name without consulting him. This action was filed with the Court of Appeal, which then shipped the case to the State Supreme Court, asking the court to clarify the law on the following questions:
(1) Whether striking down a legislative act – also known as voiding – is an available remedy for a violation of the Open Meetings Law by the legislature or a subunit thereof; and, if so,
(2) Whether a court has the authority to enjoin the secretary of state's publication of an act before it becomes law.
The Walker Administration is asking the State Supreme Court to vacate a temporary restraining order issued by Dane County Judge Maryann Sumi. This TRO barred implementing Gov. Walker's anti-union law.
Wisconsin Department of Administration Secretary Mike Huebsch Thursday petitioned the Supreme Court for an order to vacate a temporary restraining order by a Dane County judge that barred implementation of the bill, known as Wisconsin Act 10.
He also asked for a stay of the temporary restraining order and any further proceedings by the circuit court while the Supreme Court reviews the case.
He also sought the dismissal of the action filed by Dane County District Attorney Ismael Ozanne.
The Walker administration also argued in its petition that the anti-union law is "in force."
Walker filed a petition for supervisory writ, asking the court to "exercise its supervisory jurisdiction over a court and the judge." [Wisconsin Statutes, Section 809.71] The Supreme Court "will not exercise its supervisory jurisdiction where there is an adequate alternative remedy."
The reason the Department of Justice filed this unusual writ is because it cannot file an appeal because it no longer represents the Secretary of State, who was their only active defendant given the lawmakers have invoked legislative immunity. Last week during the hearings before Judge Sumi, Secretary of State La Follette essentially fired the Department of Justice lawyers and hired his own attorney. La Follette was angry that they had filed an appeal without consulting him, and that they were not asking his questions of the witnesses at this hearing. One impact of La Follette obtaining his own lawyer is that the DOJ lost the right to appeal the TRO order:
Steven Means, executive assistant to Attorney General J.B. Van Hollen, said on Tuesday that the AG couldn't appeal the order Sumi issued that day because it no longer represents any active defendant in the case.
In its petition to the Supreme Court, the Walker Administration is claiming that Judge Sumi did not have legal authority to "stop the legislation before it becomes law."
The petition asserts that courts cannot invalidate legislative acts for alleged failures to follow procedures and cannot prevent legislation from becoming law.
Walker seeks a declaration that a "court may not enjoin the legislative process by restraining actions necessary for a legislative act to become law."
The Walker administration wants the Supreme Court to immediately stay the TRO based on financial damages to the state caused by the failure to be able to implement the anti-union law:
The petition also asks the court to immediately stay Sumi’s March 31 restraining order, citing lost fiscal savings to the state from being unable to implement changes to worker pay and benefits made by the union law. It estimates the savings to be $30 million this year and $300 million in the 2011-13 budget.
“Further delay negatively impacts the state’s fiscal health by not achieving these savings,” the petition states.
The Walker administration also asks the Supreme Court for a declaration that "a claim under the Open Meetings Law does not allow for the invalidation of an act of the State Legislature." The petition states the principle that courts may not "strike down an act passed by the Legislature on the basis of an alleged failure to follow a rule of legislative procedure where such rule is not mandated by the Constitution." Of course, District Attorney Ozanne's legal theory is that the open meetings law is based on two constitutional mandates. The Walker administration states that the open meetings law applies to the Legislature but "an alleged violation" of this law "cannot form the basis for invalidating an Act of the Legislature."
The Walker administration also argues that the lower court does not have personal jurisdiction over the 4 GOP defendants. This argument is based on the fact that the GOP lawmakers have legislative immunity from civil process and they claim that this immunity will not expire until May 2012. At the last court hearing held by Judge Sumi, she asked the parties to prepare legal briefs on 3 questions to determine whether the case can move forward while the lawmakers invoke immunity:
She also asked them to answer three questions - whether an officer’s immunity would allow for the monetary penalty portion to be split from a declaratory relief order; if the court can move to judgement, even if indispensable parties are not present, and whether the time limits for the DA to serve papers on parties continues to run while immunity remains in effect.
District Attorney Ozanne also indicated that he would cover the issue of when would the lawmakers not be covered by legislative immunity in his briefs. Ozanne stated last week that "there is a window in July and in December when lawmakers are not in session, so there is a possibility they would not be protected by legislative immunity."
The Walker administration is also flipping back to its argument that the anti-union law is now in force. It claims that the TRO issued by Judge Sumi to enjoin publication of this law was "legally ineffective." Walker is arguing that it is the Legislative Reference Bureau, not the Secretary of State, that has the statutory authority to publish laws and that the Secretary of State's statutory duties "relate to, but do not constitute publication of an act." As I have discussed in other diaries, the statutes, and State Supreme Court decisions have indicated that it is the Secretary of State who must publish a law for the law to take effect and the LRB simply does prep and printing work for this publication of the laws.
Given the late hour, I did a quick perusal of the petition, which seemed to generally have the same arguments and cases that were argued before Judge Sumi.
update: Secretary of State also asked Supreme Court to drop appeal that Justice Dept. filed in his name without consulting him. This action was filed with the Court of Appeal, which then shipped the case to the State Supreme Court, asking the court to clarify the law on the following questions:
(1) Whether striking down a legislative act – also known as voiding – is an available remedy for a violation of the Open Meetings Law by the legislature or a subunit thereof; and, if so,
(2) Whether a court has the authority to enjoin the secretary of state's publication of an act before it becomes law.
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