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Judge Sumi has once again issued an order without explaining her authority to act. I understand that she probably buys the argument that passage of the open meetings law somehow effected, sub silentio, an exception to the general rule against enjoining publication of the law. The idea is the legislature has made itself subject to the law and, therefore, a law passed in violation of the law might be void.

But that begs the question. In all cases in which an injunction against publication is sought, there was an argument that the legislature had failed to abide by a legal command applicable to it. In Goodland, it was the requirement that a 2/3 vote be obtained to override the Governor’s veto. While the open meetings law gives courts the authority to declare actions taken in violation of the law to be void, that doesn’t mean that they can enjoin the publication of enacted laws. (Incidentally for those who keep saying that Goodland is too old to be the law, it’s rationale was reiterated and endorsed in a 1977 decision of the Court, albeit in a different context.)

The error matters here for at least two reasons. First, if the law has been published, it may be effective. Presumably collective bargaining agreements passed in violation of its terms will be void. But it it has not been published and not yet gone into effect, we can expect to see an argument that agreements passed in the period between its enactment and its delayed publication are effective. If those arguments succeed, the court will have – however unintentionally – created an extended window for evasion of the law. (If this doesn’t work, incidentally, it may be because the LRB published the law.)

Second, Judge Sumi is now uncertain how to proceed. I can understand why. What does she do with the immune legislative defendants? When, indeed, will their immunity end? This is apparently one of the reason that, having acted with what may turn out to have been undue haste, the court has now continued a temporary restraining order for at least seven weeks for additional briefing.

For those of you are wondering, we normally don’t have problems with legislative immunity in cases seeking the invalidation of a law. The reason is we don’t sue the legislators. We sue whoever is charged with implementing the law. That didn’t happen here – at least in part – because of the desire to enjoin publication. Error begets error.

But beyond all of this, it really helps when a court explains itself. That generally involves identifying an issue, acknowledging the arguments of counsel and explaining why they do or do not apply. That helps the appellate courts, informs the public and may even lead to better decisionmaking. I am not a judge but I am a referee in discipline cases. More than once, I have modified my recommendation because it turns out that, to use the judicial lexicon, it “wouldn’t write.”

By way of counterexample, I disagree with Judge Conley’s decision in Wisconsin Right to Life v. Brennan and think that the United States Supreme Court will go the other way. But he explained – in some detail – why he ruled the way that he did.

In fairness to Judge Sumi, things have moved fast and state court judges don’t have the kind of help that federal judges do. It is also possible for an opinion to follow a ruling. I hope she considers that. She may well find that it just doesn’t write.

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