Today, Democratic District Attorney Ismael Ozanne filed his partial response to GOP Attorney General Van Hollen's petition to lift the temporary restraining order issued by Judge Maryann Sumi to stop the publishing of the anti-union law by Democratic Secretary of State Douglas La Follette. I discussed the AG's petition last night in this diary. 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.
The DA's office emailed me a copy of its response so I do not have a link for the document.
UPDATE: There is now a link online to the DA's response brief.
The Justice Department provided a summary of its arguments to lift the TRO that it presented in its legal brief:
(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.
One problem with the AG's brief is that it focused on general legal principles without acknowledging the distinctions, qualifiers and exceptions as well as the big picture of the open meeting law, why it was enacted, its purpose and its relationship to constitutional mandates.
The DA's brief addressed this issue of "whether the trial court has authority to issue a temporary restraining order to enjoin Wisconsin Secretary of State Douglas La Follette from publishing 2011 Wisconsin Act 10" or the anti-union law. The DA's brief did analyze the overall statutory scheme of the open meeting law and its linkage to constitutional mandates.
The DA argues that when there has been a violation of the open meetings law by the Wisconsin legislature, a court has discretionary authority to enjoin the Secretary of State from publishing the act which is the product of the violation. This theory sounds similar to the criminal law doctrine of the fruit of the poisonous tree. It really is a legal metaphor for illegally obtained evidence: If the source of the evidence or tree is tainted, then anything gained or the product of the tree, the fruit, is tainted as well. Otherwise, the legislature and other government entities covered by the open meeting law would have incentive to violate the law, rendering the right of the public to participate in government a sham.
The DA starts with the premise that the open meeting law is a "wholly contained statutory regime designed to implement the constitutional commands of openness and transparency in government." As I noted in last night's diary, this constitutional linkage is important. 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, as I noted last night, 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. The DA's brief today notes that the "legislature's own cross-reference" to a constitutional provision in the open meeting law "acknowledges that its compliance with the Open Meetings Law is a constitutional command and not a mere requirement of statute." The DA also continued with a distinction in the law I noted last night: "A court may regulate the legislature's conduct if its rule of procedure is a codification of its constitutional obligations."
The DA notes that the legislature "bound itself" to the requirements of the open meeting law and has "consented to be sued when violations occur." The open meeting law provides standing for the AG or DA to enforce the law, grants courts jurisdiction to hear these claims, provides remedies for violations, empowers a DA to seek and a court to award forfeitures, injunctions and declarations as well as authorizing courts to void actions taken in violation of the requirements of the open meeting law. The legislature repealed and recreated the open meeting law in 1975, expressing in this new law the "intent, purpose and will of the Legislature 'to comply to the fullest extent with this subchapter.'"
This commitment by the legislature was reinforced with a new provision that the law "shall apply to all meetings of the senate and assembly and the committees, subcommittees and other subunits thereof" except under certain limited circumstances. The legislature also broadened the available remedies to enforce the law beyond forfeiture to include authorizing the AG or DA to see "such other legal or equitable relief, including but not limited to a writ of mandamus, an injunction or a declaratory judgment, as may be appropriate under the circumstance." The Legislature also added for the first time that actions taken at a meeting held in violation of the open meeting law were voidable if the court found that the public interest in enforcing the law "outweighs any public interest which there may be in sustaining the validity of the action taken."
The DA noted that despite the Legislature's commitment to comply with the open meeting law, and the available remedies, the AG now argues that the trial court is powerless to prevent the publication of legislation enacted as the product of clear violations of the law. The AG argued that no court has jurisdiction to enjoin publication of a legislative act on the grounds that the legislation is unconstitutional. The DA made the same distinction I noted in my diary last night: The DA is not claiming that the anti-union law is unconstitutional. Rather, the DA argues that the anti-union law was the product of violations of the open meeting law and the DA is trying to redress pass violations of the rights of the public mandated in the open meeting law. Moreover, the DA notes that the open meeting law is a legislative grant of authority to the DA to "enforce its requirements against the Houses of the Legislature and any of its committees" subject to certain exceptions that the trial court held do not apply here.
The DA also rejected the AG's argument that no court could invalidate this anti-union law even after publication and even if there were violations of the open meeting law. The DA argues that this "result flies in the face" of the statutory provision granting the court power to "void the action of a governmental body that occurs at a meeting held in violation of the law." The DA notes that the AG's argument would mean that the statutory voidable provision would be a "nullity" when applied to the legislature to immunize from judicial review "any action by the Legislature in violation" of the law despite all the legislative commitments contained in the law to the contrary and the failure of the legislature to exempt itself from having its actions voided.
The DA maintains that a "complete remedy under the Open Meetings Law is not possible unless what is voidable includes not only the actions taken by the offending committee and its members, but also subsequent actions taken in reliance on the voidable action" or the anti-union law. This is a common sense approach that if the actions taken by the committee are void, then the committee could not have forwarded or moved the measure onto the Senate and Assembly to pass the measure. "If it is held otherwise, then the District Attorney, as enforcer of the Open Meetings Law, could never obtain full relief under these circumstances, for the unlawful actions by a committee at any level of government would be disregarded by a court where the parent body approves the same action despite the violation."