The Corner

Scott Walker’s Day(s) in Court

The Wisconsin cognoscenti were surprised last week when Madison-based judge Maryann Sumi issued a temporary restraining order blocking implementation of Gov. Scott Walker’s bill to limit public-sector collective bargaining. (And yes, Wisconsin does have a judge whose name is pronounced “sue me.”)

Sumi’s decision was a puzzling one. Marquette University law professor Rick Esenberg said he was “astonished” when he read the order, saying Sumi “seems to have managed to enjoin publication of the statutory changes in the budget repair bill without addressing any of the difficult issues that the case presents.”

The law was challenged on the basis that the legislature hadn’t provided proper public notice before the state senate voted on the bill. Yet in her opinion, Sumi didn’t address the relevant laws and rules that demonstrate that what the legislature did was proper. She merely expressed concern for the legislature’s lack of public deliberation, before taking one day to hold hearings, issue her ruling, and go on vacation.

It has since been discovered that Sumi’s son is a former organizer for the AFL-CIO and SEIU, and his Facebook page contained vulgar diatribes about conservatives and Scott Walker (before he pulled the page down). Furthermore, Sumi’s husband actually contributed money to three of the Wisconsin state senators who fled the state to block legislative action on the bill, and also contributed to the campaign of Scott Walker’s 2010 gubernatorial opponent, Tom Barrett.

But all of this is water under the proverbial legal bridge. Wisconsin’s attorney general, J.B. Van Hollen, has appealed Sumi’s order to Wisconsin’s Fourth District Court of Appeals. Text of the appeal can be found here.

Van Hollen’s argument appears to hinge on three main points:

1. The Dane County district attorney lacks standing to challenge the actions of the legislature, as legislators are granted immunity from prosecution by the state constitution.

2. The judicial branch has no authority to halt the publication of an act. The attorney general argues that a law cannot be properly challenged until it actually becomes law, and cites Wisconsin Supreme Court case history to show that Sumi’s temporary restraining order was unprecedented. A previous court ruling held that “no court has jurisdiction to enjoin the legislative process at any point,” which is exactly what Sumi’s order sought to do.

3. No violation of the state’s open-meeting law actually occurred to warrant blockage of the law’s publication. Wisconsin statutes provide that when legislative rules and state statutes conflict, it is the rules that take precedent. Walker’s bill was passed in a special session, and legislative rules allow special-session bills to circumvent the normal 24-hour notice requirement.

Included in Van Hollen’s filing is a request to appeal the case directly to the Wisconsin Supreme Court. The Dane County district attorney has filed his response to Van Hollen with the appeals court. (Text here.) The bill was originally scheduled to become law on March 25, but now the timetable for enactment is unknown.

Christian Schneider is a senior fellow at the Wisconsin Policy Research Institute.

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