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Wisconsin District Attorney Ismael Ozanne filed a legal brief today in response to the Attorney General's legal action seeking to lift the TRO granted by a judge last week to stop the Secretary of State from publishing the anti-union law.

The DA's legal brief adds some context to the complaint he filed recently to hold GOP lawmakers accountable for violating a law designed to enable citizens to participate in their government affairs. The upshot is that the AG seeks to quickly make this anti-union law effective before the courts address violations of law.  While the AG argues that there will be irreparable harm if the law is not made effective now, this TRO only remains effective until a hearing for a temporary injunction that is scheduled for March 29 and April 1.

The reason for this rush is clear:  The GOP lawmakers are angry that their plan to create a new legislative process has hit this legal obstacle.

The DA's theory for his case is 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 for noncompliance with the law, then anything gained or the product of the tree, the fruit, is tainted as well.  In this case, the anti-union law is the fruit or product of a GOP procedure created to ram the measure through the legislature by creating a new committee that did not comply with the open meeting law.

It is the DA's position that "if the action of the committee is a nullity, then so are the subsequent actions of the Senate, the Assembly and the Governor." The DA quotes Senator Scott Fitzgerald who admitted that this anti-union measure could not become law unless the GOP created the new Joint Conference Committee. Senator Fitzgerald stated that the "Senate is prevented from further establishing its position due to the lack of a special quorum required under" the Wisconsin Constitution and thus "it is time to move this process forward" by creating the Joint Conference Committee. The DA notes that it "is clear" that "but for the voidable action of the Joint Committee of Conference, neither the Senate nor the Assembly could have proceeded further" on the anti-union measure.

This sham is exposed by the DA's lawsuit.

Enactment of this anti-union bill was not possible due to a lack of a quorum in the Senate, so the Senate created this new Joint Conference Committee to handle this "new" anti-union measure that was supposed to be non-fiscal.  In order to prevent the public from participating in this legislative process as required by the Open Meeting law, the GOP did not inform the public in a legally required timely manner beforehand about the meeting on this measure or provide notice that they planned to substantially re-write this bill and then they held the meeting in a small room to limit the number of citizens who could attend IF they were fortunate enough to learn about the meeting. The GOP then rammed this anti-union law through the "legislative process" by sending it from the committee to the legislature and then on to the governor for signing. Publication of this measure by the Secretary of State is the last step required to make this anti-union law effective. If the AG prevails, then 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's office emailed me a copy of his supplemental response and his amended complaint, which adds a few more defendants: The Wisconsin Senate, Assembly and a few Democrats. I have not had time to read the amended complaint, but it is reported that the DA also added another claim that "Secretary of State Doug La Follette, already a defendant in the case, doesn’t have the authority to publish the law -- a step needed to put it into effect -- because the measure is invalid." That is, the Secretary of State would exceed his authority if he published this anti-union law because it is the "product of actions that are voidable under the Open Meeting Law."  I will add links to these documents when they are published online.

Update:  Here is a link to the amended complaint filed yesterday and now a link for the DA's Supplemental Response.

Breaking News Update:

Appeals Court asks Wisconsin Supreme Court to clarify law. The request for this certification to Wisconsin Supreme Court is at this link.

The Appeals court is asking the Wisconsin Supreme Court to clarify the law on the following questions:

(1)  Whether striking down a legislative act – also known as voiding – is an available remedy for a violation of the Open Meetings Law by the legislature or a subunit thereof; and, if so,

(2)  Whether a court has the authority to enjoin the secretary of state's publication of an act before it becomes law.

Major h/t orymartin.

This is good news. I don't have time to read the certification request now, but my own research of Wisconsin law is that the answer in this case leans in favor of the DA's case but this is not a case with slam dunk answers. The certification request also demonstrates the importance of obtaining the answers to these questions - not just for the people of Wisconsin, but also other states with open meeting laws.

Update 1:30 pm:  Cases cannot usually be appealed until the case is completed. The AG has requested permission from the Court of Appeal to appeal this case, and the Court of Appeal has indicated in this certification request that the only issues in this case that might warrant leave to appeal are the two questions that it certified and that I quoted in the prior update.

However, the Court of Appeal also would not mind getting answers to other questions raised by the AG's petition to nix the TRO, but states that the following questions, standing alone, would not probably warrant granting leave to appeal:

The AG also maintains that the circuit court erred in issuing the TRO because:
1.  the secretary of state is immune from suit;
2. there was no violation of the Open Meetings Law here because the government bodies at issue followed conflicting legislative rules for notice, that took precedence over Open Meetings Law provisions;
3. even if there was a violation, the remedy would be limited to voiding the actions of the legislative committee and senate who committed the alleged violations, and could not reach subsequent actions by the assembly, governor or secretary of state; and
4. the circuit court failed to properly consider the irreparable harm to the State which [the AG] claims will be caused by the TRO.

Update 2:30 pm:

The Court of Appeals identified 4 Wisconsin Supreme Court cases that are relevant to the certified questions. This case filed by the DA requires the type of legal analysis performed by the DA and is not answered by trying to pluck the law from one particular case as the AG does. The Court of Appeals stated that 2 cases favor the AG's position and two cases favor the DA's position. The answer is not found by counting up how many cases favor each side.  However, the two cases that favor the AG, Goodland and Stitt,  are not slam dunks for the AG.  The legislature itself changed the law dramatically after Goodland. And Stitt recognized the exception of unless the "challenged procedure constitutes a deprivation of a constitutionally guaranteed rights." Both of those cases thus also favor the DA's legal arguments. When reviewing these cases in the context of how the legislature changed the law and the linkage to Constitutional provisions, the DA's legal arguments are more persuasive.

1.  Goodland v. Zimmerman (1943) :  Court held that circuit court did not have authority to enjoin the secretary of state from publishing an act on the grounds that the act had not been constitutionally enacted because the legislative process is not complete until an enactment is published. The Court reasoned that this would constitute an invasion of the constitutional power of the legislature to declare what "shall become law."

However, since Goodland was decided in 1943, the legislature, the DA argues, has "itself authorized just such relief by enacting revisions to the Open Meetings Law" in 1975-1976 legislative session. The Open Meetings Law now has a declared legislative policy that in conformance with a constitutional mandate that the doors of each house shall remain open, it is "declared to be the intent of the legislature to comply to the fullest extent with" the open meetings law. The legislature also made the open meetings law "expressly applicable to itself" and provides for enforcement by a number of remedies, expressly including injunctions.

Thus, the Court of Appeal stated that the DA's position that the open meetings law provides remedies not available when Goodland was decided also gains support from case #2, Lynch.

2. State ex rel. Lynch v. Conta (1976) :  In this case,  a DA sought declaratory judgment about what types of meetings were covered in order to determine whether his office could file a forfeiture action (monetary penalties now maximum of $300) against legislators. This Court held that there was no separation of powers problem in actions seeking declaratory judgment or forfeitures against legislators for violating the open meetings law.  The court noted that the law was unclear as to whether a court had authority to review whether the legislature violated a statute that it had enacted.

3. State ex rel. La Follette v. Stint (1983) :  In this case, the court rejected that it had the power to invalidate legislation based upon the violation of a "procedural" statutory provision in passing an act, unless the "challenged procedure constitutes a deprivation of a constitutionally guaranteed rights." The court reasoned that the "legislature's failure to follow procedural rules that were not constitutionally mandated amounted to an ad hoc repeal of its own rules." However, Stint did not involve a violation of the open meetings law, and did not consider whether the open meeting law "implicates a constitutional right of public access to legislative proceedings," which is a key to case #4.

4. Milwaukee Journal Sentinel v. Wisconsin Dept. of Admin. (2009) :  In this case involving the public records act which is part of the broader subject area of open meeting law, "two newspapers sought access to information deemed confidential under a collective bargaining agreement ratified by the legislature."  It was argued in this case that the court "lacked jurisdiction to determine whether the legislative committee had followed the correct statutory procedure."  The Court rejected  the "contention that it lacked jurisdiction to review the legislature's compliance with the statutory provision because the statute, at least to some degree, furthered Wisconsin constitutional directives found in Art. IV, Section 17(2). " A concurring opinion in this case stated that "the weighty public policies of notice and transparency in government tipped the scale in favor of the conclusion that the statute at issue was not merely procedural."  

The Court of Appeals stated:  "We think there is a rough parallel between the constitutional provision and statute in Milwaukee Journal Sentinel and the constitutional provision and statute at issue here."

In his Supplemental Response, the DA argues that the court had jurisdiction to grant the TRO.  The DA says the AG is wrong to claim that the Secretary of State has sovereign immunity in this case. The DA maintains that the Secretary of State is a "proper party for injunctive relief to prevent him from publishing a bill that is a nullity." The DA cites case law for the "well-established" proposition that "a claim for declaratory of injunctive relief lies against a state officer who may be acting beyond his authority." Moreover, citing another case, "sovereign immunity does not bar a suit for a declaratory ruling that an individual state official or agency has violated a statute when there is an anticipatory or preventive purpose for the ruling." This is the DA's theory of his case that a legislative committee violated a few of the provisions of the Open Meeting statute.  The trial court found that the DA has a "reasonable likelihood of succeeding on this claim" and a "reasonable likelihood of obtaining" the ultimate relief of voiding the committee's action as well.

The DA cites cases that hold that a Secretary of State is a "proper party when the question is whether what he is required to publish is in fact the law." In one case, the question was "whether the Secretary of State had correctly refused to publish portions of legislation that the Governor allegedly improperly vetoed." Thus, it is not relevant whether the "underlying errors in the Legislature's enactment were committed by" persons other than the Secretary of State because the Secretary of State is the "proper party to prevent the flawed enactment from becoming law." In another case, it was noted that a Secretary of State "would not be required to publish" as "law a bill revealing that portions of it had been physically removed." In this case, the Secretary of State "may not publish legislation determined to be void."

The DA refuted the AG's argument that the court can not "intermeddle" in the Legislature's internal proceedings by issuing a temporary injunction that enjoins the Secretary of State from publishing this anti-union law pending further court proceedings. Courts are reluctant to "inquire into whether the legislature has complied with legislatively prescribed formalities in enacting a statute" due to separation of powers doctrine, and thus such issues are "not subject to judicial review unless the legislative procedure is mandated by the constitution."  The DA argues that the Open Meeting law "codifies rights to open government held by the citizens of Wisconsin" under the state Constitution that can not be abrogated by the legislature. The DA then discussed one case where the issue was whether declaratory judgment was appropriate on the issue of whether closed meetings by a Joint Finance Committee violated an earlier version of the open meeting law. The Wisconsin Supreme Court stated in that case that the Legislature is free to exercise its powers "except so far as it may be restrained by the express provisions of the Constitution, or by some express law made unto itself, limiting the same."  The state Supreme Court further stated that "in expressing the legislature's power, there is a perception by the court that statutes are more equitable with the constitution than with mere internal rules and must be adhered to by their makers." The state Supreme Court also stated that the creation of provisions of the open meeting law "would be superfluous if the legislators were not bound by the open meeting law."

This is all the DA seeks: That the law be applied to the 4 GOP lawmakers who decided that they were above the law. As the DA stated in the Supplemental Response: "The construction of the Open Meetings Law urged on this Court" by the AG "would make the Law completely superfluous as applied to the Legislature because any deviation from the dictates of the Law by said body could be justified as a mere deviation from rules of procedure, thereby foreclosing any judicial review."

Finally, the AG argues that irreparable harm will occur "if the courts are allowed to intrude into the lawmaking process." The reality is that it is the citizens of Wisconsin who will be harmed if the courts stop the DA from fighting to enforce the open meeting law requirements that the legislature enacted but wish now to amend by exempting themselves from compliance.

Originally posted to Patriot Daily News Clearinghouse on Wed Mar 23, 2011 at 08:50 PM PDT.

Also republished by Badger State Progressive, Inherent Human Rights, Discussing The Law: TalkLeft's View On Law and Politics, and Progressive Hippie.

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