Today, the Republican Attorney General Van Hollen appealed the temporary restraining order (TRO) obtained by the Democratic District Attorney Ismael Ozanne last week to stop the publishing of the anti-union law by the Democratic Secretary of State Douglas La Follette that is the last step before the law becomes effective. The AG is asking the Court of Appeal to lift the TRO issued by Circuit Court Judge Maryann Sumi. Judge Sumi issued the temporary injunction to maintain the status quo in a case involving whether or not 4 GOP lawmakers violated the state's open meeting law by holding a committee meeting without providing 24-hour notice to the public, among other violations alleged in the DA's complaint.
While AG Van Hollen filed this action on behalf of Secretary of State La Follette, La Follette was not consulted whether he had any objections to the TRO:
Specifically, according to the paperwork filed Monday, state lawyers say they are representing Secretary of State Doug La Follette, who is identified as the "petitioner" seeking to have the temporary restraining order issued by Judge Sumi lifted so that the law — which eliminates nearly all collective bargaining rights for public workers — can be published and implemented.
The "Petition for Leave to Appeal" filed by the Department of Justice lawyers concludes with the words "Secretary La Follette respectfully requests... an ex parte order granting temporary relief from the TRO entered by Judge Sumi on March 18, 2011..."
The state's lawyers argue that Judge Sumi's order impedes La Follette from doing his ministerial duty of publishing the bill by March 25, the last day of a 10-day period for publication allowed under the state constitution.
But the Department of Justice attorneys did not consult La Follette about whether he has any objection to Judge Sumi's order.
The secretary of state says he has not complained about the judge's order.
UPDATE: In this matter of the AG asking the appeals court for permission to appeal the TRO, the appeals court has issued an order to DA Ozanne that presents a timeline for his response to the State's motion and petition: The DA must submit a memorandum addressing the "authority of the judiciary to enjoin the secretary of state from publishing an act" by 4 pm today and any "remaining arguments the District Attorney wishes to make in response to the petition for leave to appeal and accompanying request for temporary relief shall be filed by Wednesday, March 23, at 4:00 pm."
The AG's legal brief notes that Judge Sumi granted the TRO because DA Ozanne has established "probability of success on the merits that an Open Meeting violation had occurred, the likelihood of irreparable harm if the TRO was not issued, lack of an adequate remedy at law, and necessity of preserving the status quo." The TRO remains effective until a hearing for a temporary injunction that is scheduled for March 29 and April 1.
The Justice Department provided a summary of its arguments to lift the TRO that it presented in its legal brief:
In summary, today's action by the Justice Department argues:
(1) The (Dane County Circuit) court had no jurisdiction over the legislators (who have legislative immunity) or the Secretary of State (who is not a proper defendant in an Open Meetings case and also enjoys sovereign immunity;
(2) The court may not interfere with the legislative process and enjoin the publication of a bill as the last step in the legislative process; and
(3) Even if the Budget Repair Act were published law, a court could not void it on the basis of an Open Meetings violation. Supreme Court decisions have made clear that a court may not void a law based upon the legislature's failure to follow rules of legislative process, whether those rules exist in statute or legislative rules. Courts may only evaluate whether constitutional procedural requirements were met.
I will write more on this later this week, but here are some initial thoughts at this late hour:
Regarding argument #1, the DA has acknowledged that the GOP lawmakers have legislative immunity and thus the matters regarding them cannot be resolved at this time. [Complaint, para. 46]
Regarding arguments 2 and 3, the DA alleged in the complaint that the open meeting law is a "codification of [two] mandates expressly provided for in the Wisconsin Constitution." This may become decisive as the general rule is that the Secretary of State may not refuse to publish a bill based on a belief that the bill is unconstitutional because this is a question that in appropriate circumstances can be considered only after the bill is enacted. The rationale is that if a court could enjoin the publication of a bill based on grounds of constitutional invalidity, then the court, not the legislature, would be determining the content of the law. The AG's brief focuses on how it is only after the law "is in force – that a trial court may visit the issue of the constitutionality of that law." The AG's brief then states:
And in any event, in this case no court could invalidate or nullify the Act because there are no allegations of any constitutionally procedural defect in its passage through the Legislature.
However, the DA's complaint seems to be raising just that issue. The question here is not whether the anti-union law is constitutional, but did the legislature comply with procedural statutory requirements that might codify constitutional mandates.
This leads into argument #3. As a general rule, the Wisconsin Supreme Court will not determine whether the legislature has complied with internal operating rules or procedural statutes when it enacts a law unless there are constitutional directives to the contrary. The court will not interfere with internal rules because if the legislature fails to follow its own internal rules it is essentially an implied ad hoc repeal of those internal rules. However, the exception involves constitutional directives to the contrary, or statutes that codify constitutional provisions regarding legislative procedures. It seems that the DA might be advocating that the open meeting law is a statute that codifies two state constitutional provisions and that the legislative procedure used by the 4 GOP defendants violated these constitutional provisions.
The Court of Appeal issued an order today directing DA Ozanne to respond by 4 pm on March 23rd:
The appeals court late today issued an order directing the Ozanne to respond by 4 p.m. tomorrow to Van Hollen’s assertion that Sumi had no jurisdiction to block La Follette’s publication of the law.
“Any remaining arguments the District Attorney wishes to make in response to the petition for leave to appeal and accompanying request for temporary relief,” must be filed by 4 p.m. on March 23, the court order said.