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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.

Of course, the case could be refiled after publication by someone with standing to address its constitutionality. But lay readers should not think that renders this objection meaningless. It implicates concerns for separation of powers, ripeness and standing and courts take these things very seriously and for very good reasons.

Second, the principal argument of the state – as I understand it – is that the open meetings law itself defers to conflicting legislative rules. I laid it out here. Sec. 19.97(2) says that “no provision of the Open Meetings Law 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.”

Judge Sumi acknowledges this but then asserts that “neither party has cited any rule that would have overridden the clear provisions of the notice requirement in sec. 19.84.” But I am sure that the state did cite Senate Rule 93(2) which provides that, when the Senate is in special session (and it was), “notice of a committee meeting is not required other than posting on the legislative bulletin board, and a bulletin of committee hearings may not be published.” Assembly Rule 93(3) says the same thing.

Well these sure look like rules that override the clear provisions of the notice requirements in sec. 19.84. Why doesn’t Judge Sumi think so? We don’t know because she didn’t say.

There may be ways to reach that conclusion. The conference committee in question was a joint committee and there are separate joint rules. Maybe these mean that the Senate and Assembly rules do not apply. These joint rules do not include a counterpart to Senate Rule 93(2) or Assembly Rule 93(3). If Judge Sumi concluded that only the joint rules are applicable, then maybe the plaintiff is right after all.

But even if she did so conclude (and we don’t know whether or why that is so), she wouldn’t be home free. These joint rules do include a few rules that might be interpreted to incorporate those rules into the activities of joint committees. For example, Joint Rule 84(2) says that standing and special committees of one or bothy houses may:

(2) Public notice. In compliance with the appropriate senate and assembly rules, hold public hearings and executive sessions and conduct any other committee business on the proposals that have been referred to the committee.

That might be read to incorporate the notice provisions of Senate Rule 93(2) and Assembly Rule 93(3). Joint Rule 27 requires notice of committee meetings in accordance with Joint Rule 75 “if time permits” suggesting yet another standard (and a fairly lenient one) for evaluating the notice provided here. (Rule 75 itself seems to apply to the weekly schedule of meetings.) Joint Rule 10 says that each house will determine its own rules for its proceedings. Does this mean that we look to the notice provisions of each house for the meeting of a conference committee?

Maybe Judge Sumi decided that none of this cuts in favor of the legislature but there is an overlaying problem if she did – one identified Bill Tyroler in a comment to an earlier post. Shouldn’t a judge defer to the legislature in interpretation of its own rules? The legislature thinks that it followed its own rules. Leg Counsel apparently agrees. Isn’t it proper to defer to that determination? If not, why not?

Even assuming that the open meetings law applies, did the legislature comply? Judge Sumi says that the state gave no reason for not providing twenty four hour notice. Is that right?

And even if it is, why does the balance of equities favor invalidation of the law. Judge Sumi’s rationale – that the people “own” the government and nothing can happen in secret – can’t be right. That would require invalidation of an official action every time the open meetings law is violated – something that the open meetings law itself does not contemplate. It requires a further balancing of interests which require the consideration of things other than an open meetings violation. She purports to do that but her analsis ultimately reduces to the open meetings violation. Given the terms of the open meetings law itself, that can’t be enough.

At first blush, this doesn’t seem like a strong case for invalidation. Notice was provided. The meeting – as far as I know – was open to the public. The Democrats were there (Barca) – or if they weren’t it was because they were unlawfully boycotting the legislature. My guess is that the public was as well. The measure in question has been the subject of extensive public debate and final action on it was taken with the Capitol crawling with protesters.

If Judge Sumi thinks otherwise, it requires a better explanation that this was things shouldn’t happen “in secret.”

Of course, this was not a decision on the merits but only the granting of a TRO. Nevertheless, the decision reads as if a violation is clear. It’s not.

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