Back to court for Walker’s budget repair bill

“This is a violation of the State’s Open Meetings law.”

“This is a violation of the law, not just a rule.”

“You are breaking the law.”

These words were shouted by Rep. Peter Barca (D-Kenosha) as he repeatedly tried to stop the Republicans from passing legislation that removes most collective bargaining rights from public workers. His shouts were ignored, committees and legislative bodies convened, and votes were cast. On March 11, Gov. Scott Walker signed the legislation.

But before the ink was dry, Barca and Dane County Executive Kathleen Falk filed open meetings complaints. Dane County District Attorney Ismael Ozanne followed with a lawsuit claiming the actions of the legislature violated the open meeting laws.

On March 18, Dane County Circuit Court Judge Maryann Sumi issued a temporary restraining order, stopping Secretary of State Doug LaFollette from publishing the act in the state’s newspaper of record. She asked the attorneys to provide her with briefs outlining their viewpoints of the issue. She issued the order to maintain the status quo until she could review those briefs following a planned vacation.

Like most things in Madison since mid-February, the story didn’t end there. On March 25, 10 business days after the act was signed by the governor, the Legislative Reference Bureau published the act in the state’s official record. But it’s not law, according to the LRB chief, who said a law’s effective date is based on the publication by the Secretary of State.

Which brings us to today. Judge Sumi resumes her hearing on Ozanne’s lawsuit and could rule that Republicans did violate the opening meetings law. But this case is destined to hit the docket of the Supreme Court, so it’s time to bone up on this law.

Open meetings in Wisconsin: A primer

Open meetings, and its companion, open records, are hallmarks of American government. On the federal, state and local level, it has become accepted that most governmental meetings and legal proceedings, along with records created or maintained by the government, are open and available to everyone.

There are some exceptions — classified documents for national security, child custody or abuse cases, preliminary criminal investigations, and strategy meetings with attorneys. But the list of reasons for limiting the public from observing the working of our government is short.

Governmental bodies and courts are required to inform the public as to when a meeting will be held and what the subject matter of the meeting will be.  The public is to have access to all meetings of governmental bodies and courts to witness the work of the people. The rules are not standardized, and Wisconsin has a reputation for some of the most transparent open meetings and records laws in the nation.

State statutes (WI Stat. Sec. 19.84(3)) require the leader of a governmental body (in this case, Sen. Scott Fitzgerald) to announce a meeting of the Senate to the public, to members of the media and to the official newspaper. The statute adds that the notice must be given at least 24 hours in advance — unless there is “good cause” that such notice is “impossible or impractical.” Even if “good cause” is proven, the statute requires a two-hour notice.

Unfortunately there are no court decisions or Attorney General opinions that define “good cause.” Instead, the law should be interpreted in the public’s favor to allow the most complete information about the government’s actions. The same statute says if there is any doubt  “good cause” exists, the 24-hour notice should be used.

Barca and others have and will continue to argue that the law is clear and that the Republican leadership of both the Senate and Assembly violated the 24-hour notice. Their evidence – a conference committee noticed 4:15 p.m. on March 18 that was called to order just after 6 p.m.

The subsequent votes by the Senate (sans the 14 Democratic Senators in Illinois) and the Assembly would all be void if the original meeting is determined illegal.

The Republicans, represented by the Attorney General’s office, are not arguing the merits of open meetings. However, Fitzgerald has raised the subject, claiming the that Senate rules do not require a minimal time frame to post notices of meetings, especially when the Senate is in special session.

Instead, the state’s legal argument is the separation of powers between branches of government. Its brief says the circuit court can only rule on the constitutionality of a law, not on the possible violation of procedural rules by the Legislature. The state cites a 1983 court opinion that says the “courts will not review legislative conduct to ensure the legislature complied with its own procedural rules or statutes in enacting the legislation” and “will not intervene to declare the legislation invalid.”

The state is also arguing that the court has no jurisdiction, since the bill had not been published and was not a law when Ozanne filed the lawsuit. They cite a court case, Goodland v. Zimmerman, which states “there is no such thing known to the law as an unconstitutional bill.”

And if that doesn’t work, the state will argue that the vote taken by the Senate was legal. They claim, in their motion to dismiss, that all of the fiscal components of the budget repair bill were removed, thereby nullifying the need for a 3/5 quorum.

But for now, it is in Judge Sumi’s hands. Her ruling is expected today and no matter the outcome, it’s a safe bet that there will be a speedy dash to the Appelate Court by a team of attorneys.