Bill Removing Collective Barganing in Wisconsin Struck Down

By YeOldeScribe ~ May 26th, 2011 @ 4:29 pm

It seems like a long time since we’ve talked about collective bargaining, and that’s mostly on purpose. When the Wisconsin Budget Repair Bill was being ramrodded through, we covered it extensively, and eventually we needed to talk about other political issues. We neglected to mention that Kathleen Falk’s lawsuit was thrown out because it was determined she didn’t have standing, so the suit filed by Dane County District Attorney Ismael Ozanne is the only one going through the courts right now with any weight behind it.

Judge Maryann Sumi ruled that the proposed bill violated current law and the state constitution, and therefore a) She had the authority to strike it down and b) There was no other option than to strike the bill down. Here’s a quick rundown surrounding her decision:

The state’s constitution clearly says that the government has to remain open while it’s in session. To this effect, the legislature passed open meeting laws which state that meetings “shall be preceded by public notice… and shall be held in open session.” The legislature defined further that public notice had to be given 24 hours in advance of any meeting. It also says that an emergency meeting can be called with only two hours given, but “in no case may the notice be provided less than two hours in advance of the meeting.” On top of all that, the State Supreme Court ruled in the case  State ex. rel Badke v. Greendale Village Board (1993) that, “A governmental body must meet in a facility which gives reasonable public access… and that it may not systemically exclude or arbitrarily refuse admittance to any individual” when they interpreted what open meeting laws meant.

So, was two hours notice given, and did the public have reasonable access? The answer to both questions is obviously no – even the defendants will admit that. In fact, those details aren’t even in the decision handed down by Sumi (you can read it here – and it’s definitely worth it to take a look) – they’re under the “Findings of Fact”. In short, it’s undisputed that less than two hours notice was given for the meeting (only 1hr 45min passed between the posted notice and the start of the meeting), so even if the defendants tried to say that their meeting was for emergency purposes (which they’re not arguing and Sumi already said she did not agree with in the slightest), it’s still in clear violation of the law. It’s also undisputed that people were denied access to the meeting for no apparent reason. According to this Milwaukee Journal-Sentinel article,

“The case produced testimony from those who said hundreds or even thousands of people were denied access to the March 9 conference committee. All but one entrance to the Capitol was closed by police, one law enforcement officer testified.”

The most interesting thing about this case to us is that both sides essentially agree on the facts of the case – meaning the defendants are openly admitting that they violated the law on multiple accounts. So why is this such a big deal? Why don’t we just say “Okay, the law has clearly been violated. That can’t happen, so the bill is invalid.” Seems logical, right?

The sad truth of the matter is this is all about Republican hubris. The Repubs (defendants) are arguing two things – first, that they have immunity from prosecution, and second, the court can’t tell the legislature what to do. Let’s take a look at their first point of contention. As the fleeing Democrats in the Senate well know, there is legislative immunity granted to members of Congress while it’s in session. But the individuals mentioned in the case aren’t the only defendants – the Conference Committee as a whole is listed as a separate entity, as is both the State Senate and Assembly. As Sumi points out, she can’t wait to rule on this case until the “immunity” expires (once all the parties listed are no longer in session or are no longer congressmen) because to do so would be detrimental to the state as a whole and most likely legally impossible. It also wouldn’t solve the fact that the law was put on hold until she made a ruling, so the defendants gain nothing by keeping their immunity (all of the Dems mentioned in the suit have waived immunity so proceedings could continue). There’s a lot more detail to it than that, and we really encourage you to read Sumi’s decision (linked to above) for a better explanation and lots of legal precedence backing her up.

Side-note: It amazes us every time we read a court decision how much work and research goes into making the case. Most of the time, this is actually not done by the judge, but his/her clerks and assistants. The entire team behind Sumi (as well as the judge herself) deserves a huge pat on the back by doing this the right way and breaking down exactly why she ruled the way she did and on top of that why she has the authority to do it.

The second issues is much simpler to answer than the first. The defendants have said that the court lacks authority here because the legislature passed the bill, so therefore the court can’t strike it down. Yet the defendants forget about a little case known as Marbury v. Madison which grants courts – in this case the US Supreme Court – the power of judicial review. See, it’s the court’s job to determine what the law means and to enforce it in cases of discrepancy. In this case, it’s not the laws themselves which conflict, but how the law was passed that conflicts with law. So it’s a little different, but the same idea applies. If congress says it followed it’s laws and a different branch of the state says it didn’t, does congress get to be the one who decides who is right? Of course not – they’d win every time. No, the judiciary is the perfect, impartial actor here. Second, if the courts can’t rule on whether open meetings laws are violated or not, what’s the purpose of that law (or any law)? If laws can be violated with no recourse, then they’re not really laws at all, they’re suggestions. All Sumi is doing here is saying here’s the law. You agree you broke the law. Therefore, anything you did that was in violation of the law can’t become law. Seems fairly simple to us.

One really, really important thing to note here: Sumi’s decision does not mean that removing collective bargaining is unconstitutional. All Sumi’s decision says is that the Assembly and Senate violated open meetings laws, and therefore anything that happened as a result of those meetings (such as the Budget Repair Bill’s Act 10) can’t become law.

This means that all the Republicans have to do to make this go away is to post notice of a new conference committee a day in advance, have a meeting and allow the public to view it, then vote on whatever comes out of that committee. With Republicans controlling both the Assembly and the Senate, the Budget Repair Bill would once again become law, and this time it would stay law. That’s all the Republicans have to do. That’s all they’ve ever had to do – follow their own damn rules. And yet, their hubris and arrogance is so great not only are they trying to argue that they have the ability to break the law, they fight tooth and nail to make sure that doing things the wrong way becomes legal and acceptable instead of just admitting the fact that they made a mistake and correcting it.

That’s the part that upsets us the most. Sure, we disagree with the bill on principle – public employees should have rights to collective bargaining, especially in Wisconsin where those rights have been long established and have been used to the benefit of both unions and the state. But we vehemently oppose corruption in all its forms, and this is an example of corruption at its worst. This is a group of legislators parading the fact that they broke the law, then telling the judiciary “you can’t do anything about it”.

We praise Judge Sumi for having the courage to do the right thing and fight back against these bullies and uphold Wisconsin law, it’s constitution and democracy as a whole. In the decision, Sumi even said that “A court cannot avoid its responsibility to apply the rule of law out of fear that its action will be controversial or unpopular.” Thank you, Judge Sumi for doing your job and playing by the rules.

Shame on you, Wisconsin Republicans, for thinking you’re above them.

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