Update: Some informed observers proved correct (.pdf; 9 pgs.)
According to some informed observers, Dane County District Attorney Ismail Ozanne's lawsuit against a claque of Republican State legislators (et al) is headed for the Wisconsin Supreme Court. That remains to be seen, as the District IV Court of Appeals has yet to even grant the defendants permission* to appeal Dane County Judge Maryann Sumi's March 18 order preventing the Secretary of State from publishing WalkerFitz's questionably minted union-busting law.
Ozanne filed his second response to Attorney General J.B. Van Hollen's petition for leave to appeal yesterday afternoon. In it, a 1983 decision of the Wisconsin Supreme Court, State ex rel. La Follette v. Stitt, figures prominently, as it has since the outset of this litigation.
The defendants claim Stitt effectively disposes of Ozanne's case, as the decision stands for the proposition that the legislature's internal operating procedures are off-limits to judicial branch scrutiny.
Ozanne, on the other hand, argues that the brothers Fitzgerald's twilight shenanigans are not mere internal operating procedure and that broader constitutional and statutory commands prevent the legislature from violating Wisconsin open meetings law, a violation that the defendants all but admitted before Judge Sumi.**
Perhaps even more intriguing than those fundamental separation of powers controversies is this notation below Stitt's title block:
Amicus Curiae brief was filed by David Prosser, Jr., Appleton.David Prosser, Jr. is today Justice David Prosser, Jr., who has himself recently prophesied a 100% chance that aspects of the GOP's so-called budget repair bill will reach his court. I have not read Prosser's friend of the court brief, but it may be that he telegraphed a future disposition in DA Ozanne's current case way back in 1983.
Justice Prosser is up for reelection on April 5. His term ends July 31.
* By some appearances it already has, as the District IV panel's interrogatories to DA Ozanne address the case's merits, and not simply the question of whether AG Van Hollen has met his burden of showing why his request for permission to appeal should be granted.
** Indeed, defendants' counsel conceded at the same hearing that the Fitzes were acting well beyond their prescribed legislative authority.
The above exchange between Judge Sumi and the assistant attorney general addresses the dilemma at the very heart of this dispute.