Applying the law to the Legislature
Rep. Peter Barca (D-Kenosha) objects to the March 9 Joint Committee of Conference on the grounds of violating the Open Meetings Law.
June 14 was an eye-opener for the citizens of Wisconsin — that was the day we all learned that the state Senate and Assembly can operate under their own rules, regardless of what state statutes may say.
The ruling by the Wisconsin Supreme Court allowed Gov. Scott Walker’s Budget Repair Bill to be published and put into effect, restricting collective bargaining for public employee unions. In response, Democratic Reps. Jon Richards (Milwaukee) and Peter Barca (Kenosha) are offering a constitutional amendment that would require the Legislature to be subject to the Wisconsin Open Meeting Law and its requirements.
“The recent Wisconsin Supreme Court ruling essentially found that the Legislature is above the law, and this never sits well with the public,” Barca said. “We are proposing this amendment to prevent the Legislature from violating our open meetings law and to ensure the Legislature can be held accountable, as was the intent of the Legislature when they first passed this legislation with strong bipartisan majorities 35 years ago.”
The court also said the limited attendance by the public in the Senate Parlor during the Joint Committee of Conference meeting on March 9 did not violate the state constitution’s provision which states “The doors of each house shall be kept open except when the public welfare shall require secrecy” (Art. IV, Sec. 10). The majority opinion said that provision didn’t mean everyone that was interested in the proceedings had to be accommodated, just that the media and public were able to attend. Approximately 20 members of the public were present in the Senate Parlor on March 9, in addition to the press including the statewide network WisconsinEye.
However, the ruling effectively allowed what many considered to be a violation of the Open Meetings Law, since the Senate and Assembly leaders noticed the Joint Conference Committee meeting less than 2 hours before the start time.
The OML requires meetings to be noticed 24 hours in advance or at least 2 hours ahead if there is an emergency requiring a shorter notice. Barca loudly objected to the meeting at the time and was one of the chief complainants in the lawsuit, even though he was named as a defendant in the actual court record.
Personally, I have been on both sides of this issue – as a member of the press and as an elected official. As a city council member and president of a public library board of directors, I was subject to the Open Meeting Laws. There is no provision in the state constitution that allows a city, county, school board or other public boards and commissions to supersede the OML with its own rules.
I have also filed complaints when politicians closed meetings for less than legal reasons, including insufficient notice. It is that point, the lack of 24- or even 2-hour notice that has many shaking their heads at the actions of the Joint Conference Committee.
That was exactly the point Barca and Richards made at a press conference held last week.
“We want to change the constitution so the Legislature is not above the law,” Richards said. “It will hold the Legislature to the same standards or openness as all other city councils, school and library boards. It makes it possible for legislators to be held liable for violating the Open Meetings Laws. I would hope that in these partisan times that the Republicans and Democrats would rally around this legislation to keep the doors open.”
Currently, Senators Scott Fitzgerald (R-Juneau), Mike Ellis (R-Neenah) and Mark Miller (D-Monona), along with Representatives Jeff Fitzgerald (R-Horicon), Scott Suder (R-Abbotsford) and Barca are named as defendants in the Ozanne lawsuit but cannot be held liable for violating the OML because they were working under the legislative term.
The amendment would make legislators monetarily, and maybe even criminally (albeit a misdemeanor), liable for violating the OML. As of today, when a city council person or other public official (other than state legislators) hold an illegal meeting or ignore the OML, they typically face immediate cash forfeitures.
“This (amendment) will ensure that the people of Wisconsin will always be part of their democracy and never again with the Legislature be able to shut people out,” Barca said. “There is nothing more important than having the people involved.
Richards and Barca haven’t lined up other sponsors for the amendment, but they asked for constituents who are in favor of the movement to seek support from their legislators.
Other organizations have come forward to back the amendment including the Wisconsin Freedom of Information Council, the League of Women Voters of Wisconsin and Common Cause in Wisconsin.
Jay Heck, Executive Director of Common Cause, said his organization doesn’t take the constitutional amendment process lightly, but when the Supreme Court ruling came down he saw no other way to ensure compliance with the OML. Then he said something at the July 7 press conference that caught the Democratic representatives off guard.
“The one great misnomer in this whole issue is that the public thinks the Open Meetings Law is applied to the Legislature, and they take it in good faith that there will be 24 hours for postings. However, that has been violated repeatedly with the partisan caucuses where the real business of government happens. But it came to a head on March 9.”
It is a regular practice for the Assembly or Senate to call a session to order and to have the chairman of either party’s caucus to immediately rise and motion a recess to hold a caucus of its members. It is in these caucuses that each side discusses floor strategy, drafts motions to legislation and determines what they will fight for and what they will give up.
When confronted with questions as to whether the amendment would have the OML apply to the partisan caucuses, Barca and Richards deferred to Kelda Helen-Roys (D-Madison), chair of the Assembly Democratic Party Caucus. She attempted to answer the question, but ended up sounding like politics as usual.
“I think caucuses are an important part of the process, but we want this amendment to pass,” Helen-Roys said. “It is our intent to restore more openness. Some of us are demanding to open caucuses, but we need to make a first step.”
That first step will be getting the support from a majority of the legislators in both houses and having the measure pass in two consecutive sessions. After that, the amendment would go before the voters. The earliest this proposal could go into effect would be 2014.
They think they are above the law and can do anything they want with no accountability. I think they have the elections rigged. They as so blatantly corrupt.
Not once in this article did you bring up Wisconsin State Senate Rule 93, which, ironically, was implemented in 1983 and authored by two of the “Fab 14” (Messrs Tim Cullen-(D) and Fred Risser-(D)) who ran to Illinois to avoid voting on the collective bargaining measure. Senate Rule 93 states:
“Special, extended or extraordinary sessions. Unless otherwise provided by the senate for a specific special, extended or extraordinary session, the rules of the senate adopted for the regular session shall, with the following modifications, apply to each special session called by the governor and to each extended or extraordinary session called by the senate and assembly organization committees or called by a joint resolution approved by both houses:
(1) No senate bill, senate joint resolution or senate resolution shall be considered unless it is germane to the subjects enumerated by the governor in the proclamation calling the special session or to the subjects enumerated by the committees on organization or in the joint resolution calling the extended or extraordinary session and is recommended for introduction by the committee on senate organization or by the joint committee on employment relations.
(2) No notice of hearing before a committee shall be required other than posting on the legislative bulletin board, and no bulletin of committee hearings shall be published.
(3) The daily calendar shall be in effect immediately upon posting on the legislative bulletin boards. The calendar need not be distributed.
(4) Any point of order shall be decided within one hour.
(5) No motion shall be entertained to postpone action to a day or time certain.
(6) Any motion to advance a proposal and any motion to message a proposal to the other house may be adopted by a majority of those present and voting.”
(End Quote)
So essentially what you are saying is that the Wisconsin legislature has been “operating under its own rules” for the last 27 years under heavily Democratic leadership (under rules they authored, themselves), but the moment the GOP takes the majority with a Republican Governor, the rule is suddenly illegal and undemocratic.
The state constitution already says the Legislature is subject to the laws it passes; the tortured logic of the majority opinion in this Wisconsin Supreme Court case is a true disgrace, and only proves that Prosser, Ziegler and Gablemann are no less than corrupt partisans willing to deceive voters, ignore the constitution, abandon precedent and basically do anything they think will help the GOP accelerate their donors’ taxpayer-financed gravy train. The best value of this amendment is that it could force GOP legislators to vote PUBLICLY against the rule of law. But since we now have nearly statutory one-party rule in Wisconsin, it will never get that far.
How about an amendment that states, that when grown adult legislators behave like adolescents and run away from the debate in Madison – the direct equivalent of the pouting child who takes their ball home because they don’t like that they’re not playing the game – that their truancy is counted as a “present” vote.
How about that?
Would you have made the same point when Abraham Lincoln crawled through the window of the Illinois State Senate and ran away to prevent a quorum call? Yes, that’s a true story!
Yes. Because drones from the Collective never do anything to help the DNC’s money laundering schemes.
http://badgerblogger.com/?p=20136
And certainly activist judges have never violated the rule of law to help the Collective’s “progress.”
Absolutely. Bad behavior is bad behavior, regardless of what party flag they carry.
Any more questions?
Nice, I was waiting for someone to mention that rule. Apparently, it’s only legal when it’s favored by Democrats.
Yes, Chris, and notice that no one has responded to my comment.
This article is nothing less (and nothing more) than propaganda.
Patti Wenzel (the author), if you’re reading this, I’d like you to respond to my comment above, please.
That’s funny you bring that up, Urban… Did you know that Senators Risser and Cullen (both Democrats–both ‘runners’ to Illinois), authored and helped to pass Wisconsin Senate Rule 93, which stated that a 24 hour notice was not necessary when the Senate was in special session?
So if the “Legislature is subject to the laws it passes” as you so rightly stated, then shouldn’t the Democrat minority abide by the laws that they passed themselves in 1983? Or could it be that the Democrats only play by rules they create when it benefits them, and then do the old switcharoo when the rule suddenly does not?
I’ll bit Joey. I didn’t write this as propaganda, I wrote it as a story that the Democratic representatives are forwarding amendment that will force the Legislature to apply the statute to themselves and not override laws with procedural rules.
As you noticed in the article, I have been on both sides of this issue and know how easy it is to bend the exceptions in the Open Meetings Law. I have personally walked out of illegal meetings after objecting as a council member to limit my liability and provide a witness if a complaint was raised. I have also complained and filed open meeting violations against local and state agencies.
The idea that a governmental body in this state can suspend state laws is abhorent to me and should be to you, no matter which side is doing it. Maybe if you had more experience with governmental entities that don’t believe in open government with their people (Native American tribal nations right within this state) and how they abuse their power and authority you would understand that this is a non-partisan issue.
BTW Joey, I’m a conservative and voted for Republican candidates in this past election, and I am sickened by the behavior of my elected officials. Also, both sides are guilty of this undemocratic practice.
John, I’m glad to see we finally agree on something! 🙂
Again, the meeting was not ‘illegal’, Patti, as I have shown by copying and pasting Senate Rule 93 above. The Democrats and Republicans had both obeyed this rule since 1983, and now suddenly the rule is illegal?
I, too, have dealt with open meetings issues, but with all do respect, that has nothing to do with the subject at hand.
I am a Libertarian and am simply calling it as I see it. The rule was fine when the Democrats were in the majority, and now the rule is suddenly not valid or “illegal”.
The story would have had a lot more credibility if you had discussed whether or not a Senate Rule that has been in place since 1983 trumps state open meetings law during a Special Session of the Wisconsin Senate.
I guess my larger point, Patti, is that you failed to inject this entire piece of information about Senate Rule 93 and its authors into your article. You are obviously intelligent and well-informed, so my natural inclination is to believe that you are purposefully leaving out necessary information that one would need to come to an educated conclusion on this matter. In other words, you were writing a propaganda piece.
However, your personal experiences that you have laid out in your response to me would indicate an emotional attachment to the Open Meetings issue, so maybe you were attempting to align this issue with your own personal frustrating experiences to give the Open Meetings laws more attention. If so, I completely understand, but again, key pieces of information are being left out of your article and are misinforming people about this issue in particular.
Again, I’m just calling it as I see it. Not trying to start a fight, just asking for some clarfication.
I guess I left Senate Rule 93 out because I don’t have a problem with each chamber having rules to operate under, but they should conform with the statutes on the books. I think rule 93 has to go.
Now we’re getting somewhere. 🙂
So I guess the larger problem is, then, that the senate has been operating under this rule for just shy of 28 years, and in those 28 years, the Democrats have held most of the power in the senate.(Granted, they also had Tommy Thompson as governor for some of those years, but that’s another story.) To my knowlege, it has never been questioned until now.
So you’ll understand why I’m a bit put off that the rule seemed to suit these Democrat senators just fine for the past 28 years (and in fact, they authored the rule, themselves)…until the GOP took over and did something they didn’t like. Now all of a sudden the rule is illegal and should be changed?