30 PM UPDATE:DOJ seeks to block injunction in appellate court following restraining order

The Wisconsin State Department of Justice will ask the 4th District Court of Appeals to reverse a temporary restraining order preventing the publication of the bill which will make sweeping changes to collective bargaining rights.

A Dane County judge issued a restraining order this morning saying she will issue a final order when she returns from a vacation she had scheduled for next week.

Assistant Attorney General Steven Means said he will appeal the decision Friday afternoon or early next week. Because the initial ruling was a “non-final order” Means will have to ask the appellate court if he can file the paperwork. If the Appeals Court agrees to take the case, Means said he will ask for an expedited decision, to end the delay in the publication of the bill.

The lawsuit, filed by Dane county District Attorney Ismael Ozanne, argued that the law should not be published because the Republicans violated the open meetings law when they called and held a joint committee meeting without the proper 24 hours notice or even 2-hour emergency notice.

Judge Maryann Sumi said she saw no evidence why the conference committee could not have given a 24-hour notice for its meeting on March 9 or why a timely notice was not provided.

She said the notice requirements within the state’s open meetings law are not a minor issue, adding that it is of utmost importance that nothing that happens in government occur in secret.

Sumi added that her ruling would not stop the Senate of Assembly from coming back into session and acting on the bill again.

Further proceedings on this specific lawsuit will begin on March 29 and she is leaving the following two days open on her calendar for additional arguments if necessary.

None of the legislators named in the lawsuit were present in the court, claiming they have legislative immunity from process in the suit.  Secretary of State Doug LaFollette was ruled not exempt from that immunity and the judge could make the ruling with LaFollete present, since he is the only person who can fulfill the ruling as ordered.

In his opening statement, Dane County DA Ismael Ozanne said thousands of public employees will lose long-held rights if the collective bargaining bill is published. He suggested that the remedy to this situation would be to “keep the status quo rather than put the system in a tailspin and try to correct it afterward.”

Assistant Attorney General Maria Lazar said under separation of powers, the court can’t “jump into the legislative process before a law is published.”

She said if there are constitutional or other concerns with a law, those concerns only become actionable after the law is published.

The administration and legislative arms have been arguing that the state’s open meetings laws don’t apply to them during special sessions or over how they conduct business within their own chambers.  They have often cited the State Constitution, Article 4, subsection 8, which reads, “Courts have no jurisdiction to review legislative rules of proceeding, which are those rules having “to do with the process the legislature uses to propose or pass legislation or how it determines the qualifications of its members.” Milwaukee Journal Sentinel v. DOA, 2009 WI 79, 319 Wis. 2d 439, 768 N.W.2d 700, 07-1160

Lazar said it would cause “great harm” if the court would interject itself into the bill making process, clearing the way for any group or individual to run to the courts to block a law before it is published.

Immediately following the ruling, Dane County Executive Kathleen Falk congratulated the Ozanne for a “great first victory on behalf of Wisconsin’s citizens.” She said this ruling showed the nedd for open, honest government from a Governor and Republican legislature who have trampled those values.

“This decision will be reversed because we made sure to cross every “T” and dot every “I” and we followed the rules, checked with the Chief Clerk (of the Senate) and the Attorney General’s office,” she said. “This is trying to create negative energy against the savings and cuts that will be realized with this bill.”

Senate Majority Leader Scott Fitzgerald, who was named as a defendant in the lawsuit, had not direct comment, but his spokesperson did release a one sentence statement.

“It’s an ongoing legal issue, and we can’t comment on it,” said Andrew Welhouse. He added that it was unknown if Fitzgerald would call the Senate back to open up discussion on the bill, now that Sumi has made her initial ruling.

State Representative Mark Pocan also expressed his pleasure with the order against the law.

“In FitzWalkerstan, Republican didn’t follow the rule of law in their haste to bust unions and balance the Wisconsin budget on the back of the middle-class,” Pocan said in a prepared statement. “I hope that this time Gov. Walker adheres to a legally binding temporary restraining order, unlike his now infamous lockdown of the Wisconsin State Capitol. It’s time Gov. Walker starts focusing on Wisconsin, rather than attempting to elevate his national profile.”

With this ruling, Secretary of State Doug LaFollette will not be able to publish the law, Wisconsin Act 10 on March 25 as he had planned.  Instead, LaFollette said slowing down the process is necessary.

“All along I’ve tried to judiciously and carefully follow the law in a prudent way,” LaFollette said. “As the arguements this morning clear and the judge I think made clear, this is a momentous activity on the part of the state. This is not some minor piece of legislation. And because of that the open meetings law was very significant and should be taken very seriously.”

Questions as to whether employee layoffs or sanctions will have to be reinstated due to the delay were met with no response.

There is an second hearing on another lawsuit filed by Dane County County Executive Kathleen Falk this afternoon.  Stay tuned to TCD for updates on this fluid issue.