May 26, 2011

Wisconsin Fitzgeralds won't be fined ... for now

Except for the parts we completely ignored:
"We are supremely confident that we followed the law perfectly," said Andrew Welhouse, spox for Scott Fitzgerald.
Well this is pleasing (Judge Sumi, Final Judgment) (.pdf; 18 pgs.).

Judge Sumi's Decision and Order (the good stuff) (.pdf; 33 pgs.).

Poor Mike Huebsch, he's going to have to retool his whole strategery.

Because Judge Sumi just scuffed his limestone pier.
¶ 79 There is no rule adopted by the Legislature, applicable to the March 9, 2011, meeting of the Joint Committee of Conference, that conflicts with any requirements of the Open Meetings Law, within the meaning of Wis. Stat. § 19.87(2).
But you knew that already.

lol@Sykes calling Rick Esenberg. Might have to actually listen to that.

Sneering comedy gold, doubtless.

And, via @wisconsinreport:
Assembly speaker [Jeff Fitzgerald] confident high court will undo
Their hubris truly knows no bounds.

30 comments:

gnarlytrombone said...

She lays out the FitzWalker crew's insanity pretty nicely, "We demand our day in court, but refuse to appear."

illusory tenant said...

Fitz Van Walker are fools if they didn't see this coming eventually.

Anonymous said...

Illy-T, what legal rationale could the Wisconsin Supreme Court provide to overturn Sumi's decision? Unless I missed it, is there such a scenario? Would that decision constitute judicial activism on the part of the conservatives on the bench? Or, would the conservatives be inclined to let Sumi's decision stand if indeed, as you have reported, it is written and interpreted to the "letter" despite the hyper-actions of Esenberg, Dad29, and their radical minions?

I'm just trying to figure it all out. Thanks!

illusory tenant said...

What legal rationale could the Wisconsin Supreme Court provide to overturn Sumi's decision?

Find that the Wisconsin Open Records Law violates the Wisconsin constitution on separation of powers grounds.

Would that decision constitute judicial activism on the part of the conservatives on the bench?

According to conservatives' own definition of "judicial activism," totally.

Or, would the conservatives be inclined to let Sumi's decision stand if indeed, as you have reported, it is written and interpreted to the "letter" ...

That would depend on the extent of Deputy Attorney General Kevin St. John's ideological zealotry (I understand he bears primary responsibility for the DOJ's various budget repair litigations).

murph said...

The ruling and findings of fact make repeated mention of Exhibit 10.

Are the exhibits posted online in PDF?

illusory tenant said...

Not that I'm aware of. Those would have been exhibits introduced during the hearings so you might have to review those (all are archived at WisconsinEye, I believe).

Anonymous said...

Thank you for responding to my 11:53 a.m. inquiry!

"Find that the Wisconsin Open Records Law violates the Wisconsin constitution on separation of powers grounds."


Even though there are different circumstances, Texas conservative lawmakers are also challenging its Open Records Law.

www.rcfp.org/newsitems/index.php?i=11172

www.firstamendmentcoalition.org/2010/08/texas-cities-blocked-from-joining-suit-against-states-open-meetings-law/


Now, assume the Wisconsin Supreme Court did overturn the Wisconsin Open Records Law. What do you think would be the ramifications or consequences for Republicans who are literalists? Could this decision be appealed to the Supreme Court? Wouldn't Scalia and Thomas have a field day if this case made it there?

Sorry for asking so many questions.

illusory tenant said...

It would demonstrate that the self-styled conservatives on the Wisconsin Supreme Court are merely political poseurs, for one thing. At the moment I don't see this case going any further than the State Supreme Court, as this is purely a State and not a federal issue.

gnarlytrombone said...

Exhibit 10 is transcript of conference committee, with specific reference to Barca's warning about the open meeting violation.

illusory tenant said...

Right you are. It's attached (.pdf pgs. 53 through 59) to the Dane County Circuit Court's Motion to Supplement [Supreme Court] Record (66 pgs.).

Anonymous said...

You *don't* think the supreme court will undo? i suppose its time to test your read on the independence of one prosser, j.

illusory tenant said...

I don't know what they're going to do. But they could conceivably find the OML unconstitutional. The Republicans in the legislature violated the plain language of the statutes, and they violated the constitution. Their counsel admitted to both counts in court. How else is the Supreme Court going to get around that except to say, 'Well, the law that you broke -- and the law that Judge Sumi was following to the letter -- wasn't ever really a law at all.'

I don't know that I said anything about Prosser's independence, only that he was slighty less likely to join the other three "conservatives" than each of those three were likely to join one another. But if they do reverse Judge Sumi -- and the case is probably going to morph from petition for supervisory writ back to appeal [the DOJ has been all over the map on this thing, as the Fitzes are indefensible directly on the merits] now that Sumi has issued a final judgment -- their reasoning should be amusing.

William Tyroler said...

Separation of powers is a good bet for reversal, in 2 related but distinct respects: 1) standing by the DA to mount this challenge; 2) judicial authority to declare void an Act passed in (arguable) violation of internal legislative procedure. I know, I know, it's more complicated than that; just trying to peer into the future to glimpse the possible if not likely outcome.

Seems to me, though, that Sumi glided right past these problems. She glibly asserts, for example, that the legislature has chosen to apply the Open Meetings Law to itself, pdf, pp. 14, 16. But there's a real question about whether the legislature has the authority to authorize an attack on its own enactment based on perceived procedural irregularity in its passage. The case Sumi relies on, Milw. J-S., doesn't get her to that point, I don't think. I'm not saying the case can't be made, only that she didn't make it.

As for the DA bringing the claim, the problem is that the legal arm of the executive branch can only defend, and can't affirmatively attack, the constitutionality of a statute, State v. Oak Creek, 232 Wis. 2d 612 ("the attorney general's duty is to defend, not challenge the state statutes' constitutionality"). The tension here is pretty stark, and Sumi has done nothing to resolve it. In fact, she unwittingly exacerbates it with her assessment that "The State Has Proven" an OML violation, p. 23. The State proved that the State passed an unconstitutional bill? Again: maybe separation of powers doctrine permits such a state of affairs, but I don't think it can be assumed.

That said, I have a feeling (which could be way off), that the recent Foley-Ciccantelli v. Bishop's Grove, 2011 WI 36, might play a role in the outcome. On its face, it's got nothing to do with OML, etc. But it does deal with fundamental questions of standing and justiciability, which themselves lie at the heart of this issue. Best of all, it's a 3-1-3 split, which means, good luck finding a majority to port principles from that case to this one. For that matter, good luck finding majority agreement on most any caselaw principles these days. Should make for an interesting summer.

illusory tenant said...

Learned counsel, ltns. Why aren't you representing the defendants?

gnarlytrombone said...

not challenge the state statutes' constitutionality

I'm way out of my league here, but it seems to me the constitutionality of the statute is not at issue.

illusory tenant said...

Depending on your perspective, it's somewhere between a sub silentio and an overt argument in Huebsch's petition for a supervisory writ. Personally I'm inclined toward the latter and even more inclined to emphasize what the Walker administration is ultimately up to: Seeking to have declared unconstitutional by the State's highest court guarantees of public access to government proceedings. A proud achievement, somebody in there apparently believes. The bookend to photo ID.

gnarlytrombone said...

overt argument in Huebsch's petition for a supervisory writ

But that's in regard the constitutionality of the OML, right? The content of the collective bargaining bill itself seems to be completely irrelevant to the case and therefore isn't being challenged by Ozanne. They may as well have been voting on a resolution lauding Elmo the Muppet; the issue at hand is the legislators' conduct.

illusory tenant said...

Sorry I misunderstood. The constitutionality of the budget repair bill provisions are not at issue, that's correct. Not at issue yet, that is, unless and until Kathleen Falk's lawsuit is reanimated (that's the one that challenges the fiscal v. non-fiscal elements of the bill).

gnarlytrombone said...

I should have made it clearer that I was quoting Mr. Tyroler.

I must be missing something, because commentators on the right almost without exception make this argument that the law can't be challenged on constitutional grounds before it is enacted.

illusory tenant said...

The OML says otherwise. Presumably they are relying on doctrine that the OML supersedes, at least for the time being, and which they would like to see the Supreme Court revert to. But that won't be as easy as they might think.

gnarlytrombone said...

Ed Fallone over at Teh Shirk's joint:

"the circuit courts have jurisdiction to hear challenges to legislative enactments based on the claim that those enactments violate the dictates of the Wisconsin Constitution...

In Zimmerman...the Supreme Court had cast doubt on the idea that there was such a thing as an unconstitutional bill. The enactment of the Open Meetings Law, and the explicit connection of its procedures to the Wisconsin Constitution's open meeting command, changed the constitutional and statutory landscape."


This still makes no sense to me. The bill isn't deemed constitutional or unconstitutional. It's the legislative procedure that's in question.

illusory tenant said...

The distinction Fallone is addressing is the one between an uncompleted (unpublished, in this case) bill and a completed law. Critics have been saying Sumi hasn't the authority to find any constitutional deficiency -- whether substantive or procedural -- in an uncompleted bill.

gnarlytrombone said...

I just can't grasp how the unconstitutionality is transmitted from the legislators to the legislation. The sanction is against behavior, not the text. The Legislature could've revoted precisely the same bill at any time before or after the ruling.

illusory tenant said...

Now you're confusing me! Who said what was unconstitutional?

gnarlytrombone said...

Haha. I'm sorry, I'll quit beating this horse.

But that's kinda my point. The court in this case isn't actually making a ruling on constitutionality, so I don't see what all the hubbub is about Ozanne "attacking...the constitutionality of a statute" per Mr. Tyroler or the court intervening before the bill is enacted.

illusory tenant said...

Ah. In that case Tyroler means the DA's authority to attack the constitutionality of any legislative Act or act, whether substantive or procedural. What he's suggesting is that the provision in the OML empowering the DA to do so is unconstitutional on separation of powers grounds, because the DA is part of the executive branch and as such his established role is to prosecute and defend the integrity of legislature-made law. I have to go read his case again. I've mentioned it here before because it also stands for the proposition that JBVH's advisory opinions are only worth the paper they're (Legislative Reference Bureau-) printed upon, in terms of what force of law they have (i.e., none). Tyroler's pretty sharp, you got to watch him.

gnarlytrombone said...

defend the integrity of legislature-made law

Ok, I'm getting a glimmer of comprehension. But I still think Ozanne is leaving the bill/law perfectly intact. The Fitzgeralds' political difficulties revisiting it aren't of his creation.

Anyway, thanks for putting up with my silly semantics.

illusory tenant said...

That's right but Mr. Tyroler's suggestion is that the OML provision empowering the DA to attack the law (or any legislative provision empowering the DA to attack any legislation) is (and would be) a separation of powers violation: The legislature doesn't have the power to give the power to the DA, and in any event the DA doesn't have the power to exercise it.

gnarlytrombone said...

Yes, that's makes it clearer. Thank you. Now I'm wondering why it took 40+ years for that issue to surface. This can't be the first challenge, can it?

illusory tenant said...

I honestly don't know offhand.