UPDATED: AG APPEALS DECISION
Here is the link to the Attorney General's appeal of last Friday's ruling by Madison judge Maryann Sumi. It makes it quite clear that she had no juridiction and that her over-reach violated both the constitutional separation of powers, but also clear and explicit insytructions from the state Supreme Court.
[The] “Court does not need to determine whether the Open Meetings Law was violated. Instead, it must only assess whether a court may issue an injunction against a party over whom it has no personal jurisdiction, whether a court may issue an injunction to interfere with the constitutional power of the Legislature to declare what shall become law, and whether a court may issue an injunction to suspend publication of a law on a legal basis that does not provide the court with the authority to declare the law void. If the court lacks any of these powers, the TRO must be promptly vacated.”
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.
Having taken a closer look at the text of Judge Sumi's decision in Ozanne v. Fitzgerald, I am quite frankly astonished. The court seems to have managed to enjoin publication of the statutory changes in the budget repair bill without addressing any of the difficult issues that the case presents.
First, there is an issue as to whether the case is even ripe for decision. In Goodland v. Zimmerman, 243 Wis. 459, 10 N.W.2d 180 (1943), the Supreme Court held that judges may not enjoin the publication of a law on the basis that it is or might be unconstitutional. A bill, in the Court's view, is not enacted until it is published such that publication is part of the legislative process with which courts may not interfere. Unless the Court wants to abandon that precedent, I think that it clearly requires that the restraining order be vacated and the case be remanded with instructions to dismiss.