March 22, 2011

Law profs & wing-nuts gone noticeably wild

Further to this prior quick note ...

In an unwarrantedly abusive and ultimately embarrassing (for her) column, former legal counsel and chief of staff to the Assembly speaker and current chief of staff to the Waukesha County executive Ellen Nowak went off yesterday on both Dane County Circuit Court Judge Maryann Sumi and on the Milwaukee Journal-Sentinel.

Do not be fooled: Ms. Nowak's screed is bogus to the core.

As currently featured on the Instaputz

Unsurprisingly, local wing-nuts Charlie Sykes* and Patrick McIlheran fell for it. More surprisingly, so did Marquette University professor of law Rick Esenberg (by whose blog post the inexplicably popular Ann Althouse was duped, thus returning us to unsurprising territory).

Since then Ms. Nowak's intemperate accusations — which would be at least low comedy if they weren't so gobsmackingly negligent — have gone wing-nut national, all the way into the Prof. Instaputz Pajamas.

Anyway, advises Ellen Nowak: "Let's focus on the heart of the defendants' (and the unions [sic]) dispute: whether the conference committee meeting was properly noticed." "It was," claims Nowak.

She goes on: "The rules governing procedure of the legislative houses are also set at the beginning of each session. Those rules include certain procedures when a special or extraordinary is called."

Now pay close attention, because these are Nowak's money quotes:
Here, the relevant rules are Senate Rule 93(3) [sic] and its counterpart, Assembly Rule 93(3). They state: "no notice of hearing before a committee shall be required other than posting on the legislative bulletin board."
Except that isn't what they state at all. Firstly, the two Rules are not identical, they're merely similar; and secondly, even if Nowak was offering a paraphrase — which she obviously isn't, as her faux rendering is enclosed in quotation marks — it's still wildly inaccurate.

State's top law enforcement officer should know

I suppose we can all forgive a former Assembly counsel for providing the incorrect citation to a Senate rule but no counsel can be so easily absolved of completely misquoting or presenting obsolete renderings of both of the Rules. That is appalling, truly. What they do read are as follows, respectively, according to their most recent adoptions:**
Senate Rule 93(2):
A notice of a committee meeting is not required other than posting on the legislative bulletin board, and a bulletin of committee hearings may not be published.
Assembly Rule 93(3):
A notice of hearings before committees is not required other than posting on the legislative bulletin boards, and a schedule of committee activities need not be published.
That also happens to be the version of Senate Rule 93(2) that Wisconsin's attorney general cites and quotes in his petition for leave to appeal, filed with the court of appeals yesterday (see the AG's Footnote 11: the AG, it must be "noticed," represents both the current Senate Majority Leader and the current Assembly Leader, the Bros. Fitzgerald, so presumably they're all up on the current Rules).

Thus is Novak's hyperbolic tirade not only itself obsolete, but arguably ... I'm not going to say it, out of professional courtesy, exactly the sort of courtesy not extended to Judge Sumi by Ms. Nowak (Judge Sumi "ignored the law" and "assault[ed] ... the judiciary and the legislature," asserts Counselor Nowak, leading the wing-nut parade).

In short, the alleged inconsistency is entirely manufactured

Of course "notice" has more than one meaning. Even lawyers know this; that's why their dictionaries contain multiple definitions for the same term. In one sense, "notice" has a temporal element, as in, "I'm giving you (fair) notice," where the notice precedes some event.

And in another sense, it doesn't: a notice is a printed message, a bulletin. And the latter is what's meant by the legislative Rules indented above. Therefore does the claim fail that Wis. Stat. §19.87(2),*** which resolves conflicts between legislative Rules and other Wisconsin statutes, is in play, because there is no conflict.

That is, the Open Meetings Law command contained in Wis. Stat. §19.84(3)**** that "in no case may the notice be provided less than 2 [two] hours in advance of the meeting" is perfectly consistent with the legislative Rules, which direct where the — physical, not temporal — notice must be affixed: "on the legislative bulletin board(s)."

Notice (pun intended) that in both Rules, it's "A notice." Not just "notice" or, as Ms. Nowak puts it, "no notice," whose remarkably irresponsible inaccuracy purports to imbue the Rule with the temporal element required by Nowak's (alleged) argument, a temporal element that simply is not there. It's a shameful performance all around.

And, as noted earlier in this here space, the assistant attorney general representing the Brothers Fitzgerald et al conceded in court not only that the defendants Fitzgerald cannot demonstrate the two-hour requirement was met, but admitted the likelihood that requirement was not met, specifically by as much as three minutes.

That does not bode well for the FitzWalkerAG's case. And neither does this. Hence the spreading desperation, is what I suspect.

* "See Ellen Nowak's excellent piece at SykesWrites. It addresses the kind of fallacious logic advanced by Free Lunch." — George Mitchell.

Hilarious and sad. Free Lunch is a frequent visitor and commenter at this blog and is hardly known to employ any kind of "fallacious logic."

** A fact confirmed this morning by the Legislative Reference Bureau. That's how much I couldn't believe my own eyes, to the extent I actually had to pick up the phone and call somebody for directions.

*** "No provision of this subchapter [subchapter V] which conflicts with a rule of the senate or assembly or joint rule of the legislature shall apply to a meeting conducted in compliance with such rule."

**** "Public notice of every meeting of a governmental body shall be given at least 24 hours prior to the commencement of such meeting unless for good cause such notice is impossible or impractical, in which case shorter notice may be given, but in no case may the notice be provided less than 2 hours in advance of the meeting."


Judge Sumi: We're not talking about the legislature enforcing its own rules, we're talking about the legislature obeying a law that gives people public access to government.

AAG Lazar: Correct.

Judge Sumi: It's not an internal rule, it's a vastly external expectation — [a] right — that people have under the Open Meetings Law.

AAG Lazar: Absolutely correct. [Momentary discussion of §19.87(2) and the Senate and Assembly Rules 93] [W]hen they're in special session, all that is required is a notice on the bulletin board and that is what was done and they are able to drop it down to that two-hour from 24-hour and we would contend in this case that that was met ...

Emphases added.

Both the judge and the AAG are in accord, together with Rules 93: "A written or printed announcement." — Black's Law Dictionary, 7th ed.


Display Name said...

So why don't the other legal bloggers break it down so clearly? I'd enjoy anyone's explanation with this level of detail.

illusory tenant said...

Thank you. Why is such shameless dishonesty always more widespread and on the 50K stations, is what I'd like to know.

Free Lunch said...

Thanks for addressing Nowak's nonsense. Mr. Mitchell clearly read a different version of her post.

Anonymous said...

1. Wisconsin open meetings law states: notice is 24 hours in advance and, for good cause, it may be no less than 2 hours.

2. However, Section 19.87 of Wisconsin open meetings law states it "does not apply where it conflicts with a rule of the Legislature, senate or assembly."

3. The meeting creating all the stir was a "joint committee of conference." Therefore, the Joint Rules apply.

4. Joint Rule 27 states: "Unless otherwise provided by law, every committee hearing, executive session, or other meeting shall be open to the public. If time permits, advance notice of every regularly scheduled committee hearing, executive session, or other meeting shall be published as provided in joint rule 75."

5. Therefore, Joint Rule 27 authorizes and permits holding a "joint committee of conference" meeting provided there is advance notice but sets no minimum time period for the required advance notice. Under Joint Rule 27 an advance notice of only 5 minutes is permitted and would actually permit no advance notice, if time did not permit.

6. Hence the minimum 2 hour advance notice required by the Open Meetings Law conflicts with Joint Rule 27 which requires an advance notice but sets no minimum advance

7. NOTE: Rule 75 is a red herring as it goes only to methods; it has no time limits for advance notice.

8. NOTE: The "Unless otherwise provided by law" wording of Joint Rule 27 only goes to the requirement that the meeting be open to the public; it does not implicate the advance notice requirements of the open meetings law.

9. Given the fact that that the meeting was a "joint committee of conference" and was not a Senate or an Assembly meeting, Senate Rule 93(2) notice rules and similar Assembly notice rules, although also requiring no minimum advance notice, as well as Senate Rule 25 (1) (b) notice rules, are not applicable.

10. It is true that Joint Rule 3 (1) requires that "At least one member from each house shall be a member of the minority party", but nothing in that Rule requires the minority party member to be present. However, the Wisconsin Legislative Reference Bureau (LRB), reports that on March 9, the Senate requested a Committee of Conference and the Senate appointed Senators Fitzgerald, Ellis, and Miller as conferees. The Assembly agreed to the Committee of Conference and appointed Representatives Fitzgerald, Suder, and Barca as conferees.

11. Senator Miller (D) was a member of the Committee of Conference and therefore, membership of Committee of Conference did in fact have a minority party member from each house. Again there was no requirement under Rule 3(1) for Committee member Senator Miller to be present. He was AWOL.

illusory tenant said...

"Consisting of" by definition requires presence, does it not?

Display Name said...

So Anony, as to your 4, do you believe this joint meeting was "open to the public"?

Anonymous said...

Someone please tell me why the good professor at Marquette has yet to address the cogent rebuttals to his argument on his website.

MAL said...

If a public representive body were to adopt as an internal rule: 'We don't like the Open Records statute and requirements; we're exempt,' the Open Records is void.

Not buying that, though the GOP is selling.