The GOP defendants Cried Uncle, essentially conceding defeat in this case but asking the court to not apply the law to them now but rather apply the law only in the future:
They further request that the entire case be dismissed, contending that the goal has been accomplished: putting the Legislature "on notice that members attending any future proceedings should be cognizant of and follow the Open Meetings Law- perhaps to the point of excessive notice.
The court was not swayed by the arrogant, cocky tone of the GOP defendants: Assembly Speaker Jeff Fitzgerald, R-Horicon; Senate Majority Leader Scott Fitzgerald, R-Juneau; Senate president Michael Ellis, R-Neenah; and Assembly Majority Leader Scott Suder, R-Abbotsford.
The Court responded that this "flawed reasoning, if adopted, would deprive the Open Meetings Law of any effectiveness in the very cases it is needed most." Moreover, as discussed below, the Legislature enacted this law to include provisions stating clearing that the law applied to them.
Thus, Judge Maryann Sumi's decision today did the right thing for the people of Wisconsin: She voided the legislative actions by GOP defendants that resulted in the anti-union measure being approved by the Legislature and the Governor and almost taking effect as a law, (Judge's decision here) and placed in abeyance the issue of individual financial liability for the GOP defendants based on a knowing violation of the law.
Judge Sumi, or more accurately, Wisconsin law and a very dedicated Dane County District Attorney Ismael Ozane, foiled the GOP defendants in this Open Meeting lawsuit.
1. Judge Voided the Anti-Union Law.
One question before Judge Sumi was whether the GOP members of a legislative joint committee of conference violated Wisconsin's open meeting law when they knowingly held a meeting on March 9th without providing public notice, and whether governmental actions taken as a result of that violation, should be voided. Judge Sumi answered this question with an unequivocal yes: The judge voided the actions of this legislative committee and thus the anti-union law has no force or effect.
This decision is consistent with the District Attorney's theory of this part of his case. The GOP defendants at the joint committee conference held a meeting covered by the law, but did not provide public notice of this meeting. Thus, the actions taken at this meeting – voting to send the anti-union measure to the Legislature for a vote – are voided. As the DA stated in earlier proceedings, if the committee vote is voided, then the anti-union measure would not have been submitted to the Legislature for a vote, and subsequently end up on the Governor's desk for signature. It should be noted that this anti-union measure was signed into law by Gov. Walker, but this law never took effect because the law-making process had never been completed. Laws in Wisconsin do not take effect until they are first published by the Secretary of State, and he never published the law.
Judge Sumi stated that the legislature and its committees are bound by the open meetings law. The GOP may whine, but this is not a matter of some judge liberally interpreting the law. When the legislature enacted this law, it included a legislative statement of policy that in "conformance… [with the state] constitution, …the doors of each house shall remain open, except when the public welfare requires secrecy, [and thus] it is declared to be the intent of the legislature to comply to the fullest extent with [the open meetings law]." The legislature also included another statutory provision in this law that states that the law "shall apply to all meetings of the senate and assembly and the committees, subcommittees and other subunits thereof" unless an exception applied.
There is only one potential applicable exception, which states that no provision of the open meetings law which conflicts with a rule of the senate, assembly or joint rule of the legislature shall apply to a meeting conducted in compliance with such rule. However, evidence and testimony presented at prior court hearings did not reveal any conflicting senate, assembly or joint rule that would have excused compliance with the public notice requirements of the open meeting law. The law requires 24 hours notice or, if good cause is presented, then the meeting only requires 2-hours notice, but the GOP joint meeting did not even provide 2-hours notice, and they did not hold the meeting in a location that was open and accessible to citizens.
Judge Sumi rejected argument by the GOP defendants that while the legislature might be required to comply with the open meetings law, the law could not actually be enforced against them when they violated the law. In typical GOP claims to special rights, the GOP argued that only the "actions of lesser governmental bodies" can be nullified but their legislative actions were special and cannot be voided when they violated the law. Citing Wisconsin Supreme Court decisions, the Judge stated that the "legislative bodies are subject to the same enforcement provisions as 'lesser governmental bodies.'"
2. Judge bifurcated the case to respond to GOP defendants refusing to waive their legislative privilege to avoid civil lawsuits.
An issue at the heart of this case is what enforcement action can be taken in this lawsuit when the GOP lawmaker defendants cling to their legislative privilege to avoid civil lawsuits while the legislature is in session. It should be noted that the Democrats waived this privilege. The GOP defendants thought they had a loophole to save them from legal accountability. They moved to dismiss the complaint for lack of personal jurisdiction based on their legislative privilege. They asserted that even though the statutory time for service has not expired, "there is no possibility that legislative immunity will be waived," and their privilege from civil lawsuits could continue indefinitely because the "legislative session does not have a predictable ending point." In other words, these brave, upstanding GOP defendants planned to claim that the legislature is always in session for purposes of this privilege, and therefore they could run out the clock on the time for serving them with the complaint for this lawsuit.
Judge Sumi resolved this question by bifurcating the case: The legislative privilege does not bar the timely resolution of the non-forfeiture claims (voiding the legislative actions) and the forfeiture claims or monetary penalties sought against the individual GOP defendants Fitzgerald, Ellis, Suder and Fitzgerald can be held in abeyance until they are not privileged from civil process.
The court concluded that the citizens of Wisconsin should not have to wait until the expiration of legislative immunity for a determination as to the validity of the legislative acts by the GOP defendants. By bifurcating the personal claims against the GOP defendants for forfeiture, the GOP defendants would not suffer prejudice because a declaration that the open meeting law was violated by a governmental body (or this joint committee) does not establish liability of any individual legislator.
This video shows the GOP defendants knowingly violated the open meetings law, and this issue, and imposition of monetary fines, is a matter to be addressed in the future: