Today, the Wisconsin Dept. of Justice (DOJ) announced that it will not appeal the temporary restraining order (TRO) that bars the state from implementing the anti-union law. This means that the TRO will "remain in effect until the Supreme Court gets involved or Dane County Circuit Judge Maryann Sumi rules on the merits of the case, which could take weeks or months."
Actually, it is more accurate to say that the DOJ cannot appeal because they no longer have an active defendant. The 4 GOP defendant lawmakers will not waive their legislative immunity. In the past, the DOJ used the Secretary of State (SOS) as a client in name only to file appeals. But, when hearings were held, and the DOJ did not ask witnesses questions that the SOS wanted to be asked, the SOS then fired the DOJ and hired his own lawyer, which left the DOJ with no active defendant to file appeals.
So, the DOJ did what the Walker administration has been doing all along, move into pressure mode. The DOJ sent a letter to the Supreme Court this week saying that if the Supreme Court did not take their case, then the 4 GOP defendant lawmakers "may have to waive their legislative immunity by Thursday if they want to argue their case" because today was the deadline to appeal Judge Sumi's TRO.
In her Tuesday letter to the high court, Assistant Attorney General Maria Lazar said if the justices do not get involved in the case before then, the lawmakers “may be forced to decide between waiving legislative immunity or letting important issues go unanswered.”But, the justices did not respond.
This means the DOJ can not appeal the TRO, and its opportunities for pending matters submitted to the Supreme Court have narrowed also. Weeks ago, the DOJ appealed the first TRO to the Supreme Court on behalf of Secretary of State Doug La Follette, but without consulting him beforehand. Since that filing, La Follette hired his own lawyer and then La Follette asked the "Supreme Court to withdraw his appeal of a judge's order barring him from publishing Gov. Scott Walker's bill curbing most public sector collective bargaining, telling the court that he never asked for the appeal." La Follette's new lawyer, Roger Sage, "wrote that there was a conflict of interest between La Follette and the state attorney general's office, which was representing La Follette, when the AG's office sought to appeal a March 18 order by Dane County Circuit Judge Maryann Sumi that stopped La Follette from publishing Walker's union law."
If La Follette's appeal is withdrawn, then "no case related to the union law would be pending before the high court."
Thus, two days later, on April 9th, the Walker administration filed an unusual writ called a supervisory writ, asking the Wisconsin Supreme Court to vacate the TRO and dismiss the lawsuit filed by Dane County District Attorney Ismael Ozanne based on violations of the state open meetings law.
So, the status now is that the Supreme Court has the La Follette appeal and the DOJ supervisory writ, but has not taken action on either yet. Thus, barring Supreme Court action, the next matter are briefs from the parties due in late May for Judge Sumi on key questions that could determine whether the court may proceed without the 4 GOP lawmakers.