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Charlie Sykes: Sykes Writes

A Judicial Smackdown

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The State Supreme Court hands Governor Walker a sweeping victory; the legislative GOP vindication; Judge Sumi a stinging rebuke and the public employee unions... well there... is... your dagger. It makes for good reading....

Here is the link to the decision.


¶7 This court has granted the petition for an original action because one of the courts that we are charged with supervising has usurped the legislative power which the Wisconsin Constitution grants exclusively to the legislature. It is important for all courts to remember that Article IV, Section 1 of the Wisconsin Constitution provides: “The legislative power shall be vested in a senate and assembly.” Article IV, Section 17 of the Wisconsin Constitution provides in relevant part: “(2) . . . No law shall be in force until published. (3) The legislature shall provide by law for the speedy publication of all laws.”...

Accordingly, because the circuit court did not follow the court’s directive in Goodland, it exceeded its jurisdiction, invaded the legislature’s constitutional powers under Article IV, Section 1 and Section 17 of the Wisconsin Constitution, and erred in enjoining the publication and further implementation of the Act.... Due to the vacation of the circuit court’s orders, there remain no impediments to the Secretary of State fulfilling his obligations under § 14.38(10)(c)...

¶11 IT IS FURTHER ORDERED that we have concluded that in enacting the Act, the legislature did not employ a process that violated Article IV, Section 10 of the Wisconsin Constitution, which provides in relevant part: “The doors of each house shall be kept open except when the public welfare shall require secrecy.” The doors of the senate and assembly were kept open to the press and members of the public during the enactment of the Act. The doors of the senate parlor, where the joint committee on conference met, were open to the press and members of the public. WisconsinEye broadcast the proceedings live. Access was not denied.[1] There is no constitutional requirement that the legislature provide access to as many members of the public as wish to attend meetings of the legislature or meetings of legislative committees...

¶12 It has been argued to the court that the legislature amended Article IV, Section 10 of the Wisconsin Constitution by its enactment of the Open Meetings Law. That argument is without merit....

¶15 The court’s decision on the matter now presented is grounded in separation of powers principles. It is not affected by the wisdom or lack thereof evidenced in the Act. Choices about what laws represent wise public policy for the State of Wisconsin are not within the constitutional purview of the courts. The court’s task in the action for original jurisdiction that we have granted is limited to determining whether the legislature employed a constitutionally violative process in the enactment of the Act. We conclude that the legislature did not violate the Wisconsin Constitution by the process it used.


Justice Prosser's separate opinion is also worth reading for its evisceration of judge Sumi's chop-logic..

 ¶39 The first and most obvious issue presented by this case is whether the Dane County Circuit Court, or any court in Wisconsin, may enjoin the publication of an act to prevent that act from becoming law. The answer is "no."...

¶46 The majority of this court now concludes that the circuit court exceeded its authority in prohibiting publication of 2011 Wisconsin Act 10. This is not a close question. Wisconsin law in this regard is longstanding and completely in line with the law in other jurisdictions....

¶51 In sum, "the legislature's adherence to the rules or statutes prescribing procedure is a matter entirely within legislative control and discretion, not subject to judicial review unless the legislative procedure is mandated by the constitution."..


¶55 I am troubled by the circuit court's apparent indifference to this court's holding in Stitt. The circuit court enjoined the publication of an act passed by the legislature, preventing it from becoming law. It justified this action by relying on statutory provisions that apply to the legislature except when the legislature says they do not.

¶56 Wisconsin Stat. § 19.87 entitled, "Legislative meetings," contains four exceptions. Subsection (1) reads in part as follows: "Section 19.84 shall not apply to any meeting of the legislature or a subunit thereof called solely for the purpose of scheduling business before the legislative body." Wis. Stat. § 19.87(1). The circuit court could not determine whether the Joint Committee of Conference failed to comply with subsection (1) without "inquiring" deeply into legislative procedure, contrary to this court's decision in Stitt.

¶57 Subsection (2) provides: "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." Wis. Stat. § 19.87(2). The circuit court second-guessed not only four legislative leaders but also the Senate Chief Clerk——an attorney——when it determined that no senate or assembly rule, including Senate Rule 93 (on which the Senate Chief Clerk relied), governed the notice requirements of the special session conference committee. The circuit court, in effect, told the Senate Chief Clerk that he did not know what the Senate rule meant.

¶58 The circuit court concluded that the legislature should have provided public notice of the special session conference committee 24 hours in advance. The court did not acknowledge that thousands of demonstrators stormed and occupied the State Capitol within a few hours of the notice that a conference committee meeting would be held.

¶59 The circuit court found that 20 seats were set aside for the public in the Senate Parlor, but it did not report that the entire proceedings were broadcast on WisconsinEye and events were observed online by Wisconsin state senators in Illinois.

¶60 The circuit court determined that the Senate Parlor did not provide adequate public access under Wis. Stat. § 19.87(3), but it overlooked the fact that conference committees on state budgets routinely met in the Senate and Assembly Parlors until the State Capitol was renovated in the 1990s.

¶61 The circuit court voided 2011 Wisconsin Act 10 on the basis of a committee meeting that lasted less than five minutes——in a room packed with reporters and television cameras. This reality was captured on television and in photographs, one of which appeared on the front page of the Wisconsin State Journal on March 10, 2011 (see attached).

¶62 The circuit court has retained jurisdiction over the prosecution of four legislative leaders for alleged violations of the Open Meetings Law, but the additional remedy it imposed in voiding 2011 Wisconsin Act 10 effectively punished the executive branch as well as legislators who were not involved in the meeting.

¶63 The actions of the circuit court exceeded the court's authority and must be vacated.


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