The Wisconsin GOP have unilaterally created their own loopholes to circumvent both law and legislative process and then tried to con or bully government officials, the public and courts into believing their BS. First they created "with little notice a "new conference committee, then they ignored the open meetings law to prevent public participation, then they rammed the anti-union law through the Legislature and Gov. Walker, and then they manufactured a loophole to pressure the Legislative Reference Bureau to "publish" the anti-union law so that it could take effect.
It is beautiful to watch the facts come to light despite the GOP's best efforts at spin, and failed attempts to halt two days of testimony last week. Walker/Fitzgerald misjudged the level and intensity of public outrage that would be sustained on the streets and in the courts. They did not count on a tenacious, methodical, and dedicated District Attorney who would stand up for the people of Wisconsin. And, they did not consider that some judges in some courts will actually uphold the law rather than try to legislate conservative political doctrine.
The evidence thus far has already connected some dots and answered questions that would not be obtainable without these court hearings. What emerges is a pattern of the GOP taking actions at every step to prevent public participation in their own government.
This week Dane County District Attorney Ismael Ozanne (DA) obtained a TRO enjoining Secretary of State (SOS) Douglas La Follette from designating a publication date or doing any further implementation of the anti-union law until "further order of the court," which now might not happen for almost two months according to the briefing schedule established by the court. Judge Sumi also declared that the anti-union law had not been published as required by statutes and is "therefore not in effect." These are really process issues needed to maintain the status quo until the heart of the case can be heard.
The DA is fighting to protect the right of the people to an open and transparent government where they have a right to participate, as set forth in their Constitution and statutes. The DA seeks judgments in his amended complaint that the 4 GOP defendants violated the Open Meetings law and should be penalized with a monetary penalty of $300 as well as pay for court costs and attorney's fee. The DA also seeks a judgment that the actions taken by the Joint Conference Committee (JCC) violated the open meetings law and two state Constitutional provisions. The DA argues that the actions taken by the JCC are void under the open meetings law, and therefore seeks a judgment declaring the anti-union law void because it is the product or fruit of the void actions by the JCC.
Court testimony showed that open government was violated when the GOP refused to provide proper notice to the public of the JCC meeting. The open meeting law required the lawmakers to provide 24-hours notice of the JCC meeting unless they could establish good cause, and then 2-hours notice is allowed. The hearings this week did not show good cause, and testimony from "numerous witnesses," including Senate staff, established that they did not even provide 2 hours notice for the JCC meeting.
Testimony also showed that the GOP could have provided 24-hours notice for the JCC meeting. Rob Marchant, the Senate chief clerk, testified that he first learned on March 7th about the JCC meeting for March 9th, or almost 48 hours beforehand, at a meeting attended by both the Fitzgeralds (Senate Majority Leader Scott Fitzgerald and his brother, Assembly Speaker Jeff Fitzgerald), Walker's deputy chief of staff Eric Schutt, Walker's budget director Brian Hayes, Director of the Legislative Fiscal Bureau Bob Lang, a staffer from Rep. Suder's office and Assembly Chief Clerk Patrick Fuller. This shows Walker's office involved in the decision to "strip the collective bargaining portion from Walker's original budget repair bill." Marchant testified that neither Fitzgerald ever provided a reason why the JCC meeting could not have been held on March 10th with the proper notice.
Testimony showed the practical impact of the GOP violating the open meetings law. Due to the failure to provide timely notice, citizens learned of the JCC meeting by postings on FB. This is more in line with citizens in other countries fighting for democracy, needing to resort to FB and twitter to spread word about protests against government than the democracy that should be promoted by open meeting laws nationwide. At the hearings, the DA put a face on some of the "hundreds or even thousands of people [who] were denied access to a March 9 meeting of a key legislative committee." The media reported on the "dramatic testimony" from civilians "who rushed to the Capitol for the hastily called meeting but were prevented from getting in." The public was so outraged that they "started a spontaneous petition to make a record" of their denied access and 2,967 people signed the petition and then delivered it to the office of Assembly Minority Leader Peter Barca.
In addition to not providing timely notice, or even an accurate notice of issues to be addressed at the JCC meeting, access to the Capitol was limited in an unprecedented manner even though the state Constitution mandates that the doors of the Legislature must remain open when lawmakers are in session. Capitol police Officer Dan Blackdeer testified that "only one of eight entrances was open just before the legislative meeting, causing a bottleneck of people trying to get into the building." Earlier in the day, two entrances were open, but one hour before the JCC meeting, one entrance was closed so that officers could provide security for the JCC. But restricted access was not enough: There was a "line of police standing shoulder to shoulder denying access." Blackdeer testified that there were armed guards and metal detectors at the entrance and in his 20 years, the Capitol police never used these types of restrictions on public access.
If Wisconsin citizens jumped all these hurdles and actually got inside the Capitol, the GOP provided one more restraint to prevent their participation in their government. Senate sergeant-at-arms Ted Blazel testified that only 20 members of the public were allowed to the JCC meeting because the small parlor room selected as site for the meeting was "otherwise filled with legislative staff and members of the media." There was no good reason for using this small parlor room for a meeting on a measure that was the focus of protests and public debate for so long: "Blazel said there were many other, larger rooms in the Capitol that were available where the committee could have met."
This video was introduced at the hearing over the AG's objection to allowing the audio to be heard, claiming it did not prove anything about open meetings. One remedy the DA seeks is forfeiture of $300 against the 4 GOP defendants because they knowingly violated the law, as evidenced by the video showing Assembly Minority Leader Peter Barca objecting at the JCC meeting:
After the anti-union law was rammed through the Legislature and signed by Gov. Walker, there was one more step before the law could legally take effect: The Secretary of State had to publish the law in the newspaper of record. (It should be noted that in another open meeting lawsuit, the DOJ argued that the case should be dismissed because there was no law in effect as "an act 'becomes law only after it has been published in the official state paper.'") The SOS refused to publish the law in compliance with the TRO.
So, the GOP decided to ram the law through the publication process too. LRB officials testified about how Senate Majority Leader Fitzgerald pressured them to "publish" the anti-union law at the Legislature's website. LRB witnesses testified that Fitzgerald is the "boss" of LRB and so his "request" to "publish" the law was interpreted "at the level of insisting." The AG exerted pressure on the LRB to "publish" the law too. Fitzgerald also told LRB to speak to the Deputy AG, who advised that a failure to publish might subject LRB to court action. In addition, the Deputy AG asked the LRB to e-mail him with confirmation once the law was "published."
The Attorney General also lost in court one of his political tools of using the name of the Democratic Secretary of State Doug La Follette to file lawsuits in his name to give the impression that the AG's position was not political. Judge Sumi "ordered the Department of Justice to provide La Follette with independent attorneys because the two sides disagree on key issues." One impact is losing the right to appeal a court order:
Steven Means, executive assistant to Attorney General J.B. Van Hollen, said on Tuesday that the AG couldn't appeal the order Sumi issued that day because it no longer represents any active defendant in the case.
The impasse now is the GOP's fallback position of legislative immunity to delay or dismiss court proceedings. The 4 GOP defendants have legislative immunity from civil process while the Legislature is in session and they refuse to waive that immunity and testify in court as Democrat Peter Barca did this week. At the hearing, the AG made clear that he did not appreciate that Barca had waived his immunity. The question is when can the judge issue final rulings on the questions involving violations of the open meetings law and remedies? The GOP defendants must waive their immunity or the legislature must be out of session so that they can be served with the lawsuit.
Judge Sumi provided a little nudge to move this case forward by asking the parties to brief 3 legal issues that could determine whether their legislative immunity is applicable in this case. I will also do some legal research for diaries on these issues before the court's hearing.
These hearings show why JoAnne Kloppenburg must win tomorrow. And that is what the right-wingers fear so much that the Leader Of Koch Front Group Is Behind Ads Supporting Wisconsin Justice David Prosser.
update: This video, included in Chris Bowers's post today, talks about how the GOP tried to thwart the people of Wisconsin at every bend and turn. This is the thesis of my diary, outlining the evidence at each step where they tried to stop open government. Such a great video complement to text of evidence from court in my diary: