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Guest comment by  Ellen Nowak.

Bottomline here: the Dane County judge's ruling on Friday was an "assault on the judiciary and the legislature." Nowak is former legal counsel and chief of staff to the Assembly Speaker and is curently chief of staff to the Waukesha County Executive:

Try again?

The fallacies in the ruling by Dane County Judge MaryAnn Sumi to issue a temporary restraining order against the publication of 2011 Wisconsin Act 10, referred to as the Budget Repair Bill, are perpetuated by the misrepresentations of facts and the law in the editorial in the Journal Sentinel on Saturday, March 19 (“To GOP: Try again”).

Both Judge Sumi and the Journal Sentinel ignored the law when rendering opinions on whether the Budget Repair Bill was properly noticed before a conference committee vote. 

This wasteful exercise of legal maneuvering by the Democrats reminds me of a saying in politics:  when you can’t win on the merits, argue procedure. 

A disagreement with the underlying bill does not authorize one to ignore the law.  Unfortunately, that was done here.   The Democrats argue that the conference committee violated the open meetings law by not allowing enough time from the notice of the meeting until the vote.  Judge Sumi and the Journal Sentinel bought that argument hook, line and sinker. 

The failure of the judge to properly research the Wisconsin’s Open Meetings Law and its exceptions, and the failure of the newspaper to do the same, is a disservice to the residents of Wisconsin who are entitled to expect accuracy and openness when applying the law and reporting on matters. 

Setting aside the multiple jurisdictional issues that should have led the court to conclude that it did not have authority to hear the case at all, let’s focus on the heart of the defendants’ (and the unions) dispute:  whether the conference committee meeting was properly noticed.  It was. 

The Budget Repair Bill was introduced in a “special” session of the Legislature.  At the beginning of each legislative session, the leaders of the senate and assembly establish a calendar of floor days and committee work days.  Once that calendar is established, the senate and assembly are only permitted to conduct floor sessions on the designated days unless a “special” or “extraordinary” session is called by the Governor or Legislature.  The Budget Repair Bill was introduced in a special Session.

The rules governing procedure of the legislative houses are also set at the beginning of each session.  Those rules include certain procedures when a special or extraordinary is called.  Here, the relevant rules are Senate Rule 93(3) and its counterpart, Assembly Rule 93(3).  They state:  “no notice of hearing before a committee shall be required other than posting on the legislative bulletin board.” 

In most cases, Wisconsin’s Open Meetings Law requires 24-hour notice of meetings of public bodies and only two hours in emergencies.  However, as noted, that statute does not apply to every meeting.  Wisconsin’s Open Meetings law contains several exceptions to the 24-hour rule.  Wisconsin Statute §19.87(2) states “No provision of this subchapter which conflicts with a rule of the senate or assembly or joint rule of the legislature shall apply to a meeting conducted in compliance with such rule.”   In other words, if there is a conflict between the Open Meetings Law and legislative rules, the legislative rules prevail.   Moreover, the Wisconsin Constitution grants the legislature broad authority in carrying out its business in Article IV, §8 where it states, in part, that “[e]ach house may determine the rules of its own proceedings.” 

As noted above, the Senate and Assembly have such rules that conflict with the Open Meetings Law in this instance.  For special sessions, the Senate and Assembly rules only require posting of a meeting notice on the bulletin board.  That was done.  There is no dispute about that.  The notice was also sent out via email prior to the meeting.  Therefore, the conference committee was properly noticed. 

The whining of the Democrats and the unions about the abuse of the Open Records Law is absurd.  The rules of special and extraordinary sessions are not obscure.   They are not hidden.  Yet the Democrats act like they’ve never heard of these or used them before.  As a former legal counsel to the Assembly Speaker, I’ve used the rules on posting notices in special and extraordinary sessions.  The laws passed in those sessions have not been invalidated.  The Democrats didn’t object then.  People didn’t protest at the Capitol.  These very rules have also been utilized under Democrat leadership as well.  It is disingenuous for Democrats to now claim the procedure is improper.

  Coincidentally, these rules were authored by Democratic State Senator Fred Risser (D-Madison) and Senator Tim Cullen (D-Janesville), two of the 14 Democratic Senators who saw fit to flee the state rather than uphold their duty to report to work and vote on the Budget Repair Bill.  Judge Sumi did not hear any testimony from witnesses during her hearing on the matter.  Perhaps she should have heard from Senators Risser and Cullen. They might have instructed her on the rules. 

The role of the judge is to apply the law to the facts of the case, not apply what he or she wishes was the law to the facts of the case.  Unfortunately, Judge Sumi chose the latter.  That is an assault on the judiciary and the legislature. 


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