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So what about Judge Sumi’s order yesterday? In today’s Journal Sentinel, I am quoted as saying that I was not surprised by the ruling but was critical of it. Both are true.

But the fact that I am surprised is not an ad hominem attack on Judge Sumi, as Tom Foley suggests (before jumping into an ad hominem attack*). In fact, I made clear to Bill Glauber that I was not attacking Judge Sumi’s motivation but just criticizing her legal reasoning. He was careful not to imply any such attack. My lack of surprise stems from the fact that, after 30 years of practicing law, I have noticed that judges don’t often retreat after taking a position.

But the fact remains that she has yet to address and distinguish Goodland v. Zimmerman. I understand the argument that the Open Meetings law has created, sub silentio, an exception to Goodland. I don’t buy it. To say that the legislature is subject to the open meetings law doesn’t mean that the normal rule against enjoining publication is inapplicable. Goodland itself involved a claim that the legislature had not complied with a procedural requirement that was binding upon it, i.e., the requirement of a 2/3 vote to override a Governor’s veto. It is an old case but, then again, so are a lot of foundational cases. I am unaware of anyone else trying to do what happened here in the 68 years since Goodland.

Mr. Foley assures us – trust him – that the court has properly considered and concluded that apparently controlling Supreme Court precedent is “insignificant.” Maybe so, but one would have expected her to tell the public – in the decision explaining her conclusion – why that is the case.

As far as her latest order, it adds little to her last one. She obviously thinks that the LRB was subject to her initial order – presumably because they are, to use the legal term, a “privy” of the Secretary of State. A “privy” is normally someone who acts at the direction of – or in concert with – a party before the court. But the LRB does not act at the direction of the Secretary of State. It’s publication duties appear to be independent of those imposed on the Secretary, although they do operate in parallel.

Be that as it may, she has continued to direct her order only to the Secretary of State enjoining him from publication. That’s what she did the first time.

What she has not done is enjoin implementation of the law – although she apparently said from the bench that she was doing just that. While she has enjoined the Secretary of State from any further application of Act 10, he has nothing to do with implementing the Act. She has declined to rule on whether the Act is “in effect” – apparently because she wants to take further testimony on that issue.

I am not sure why testimony is necessary on that (it would seem to be a pure question of law with respect to which no factfinding is required or appropriate), but even if she ultimately finds that it is not in effect, she does not have the right parties before it to enjoin implementation. I am doubtful that the LRB is “in privy” with the Secretary of State, but I am sure that the Secretary of Administration (who is appointed by a different constitutional officer) is not.

* Tom says I was a “Republican-for-hire” attorney for Sen. Fitzgerald. I have never met Sen. Fitzgerald and I doubt that he even knows who I am. I was one of the lawyers of record in an Oconto County case in which Sen. Fitzgerald was uninvolved. I did consult with a Madison lawyer regarding the notion of holding the absconding Democratic Senators in contempt and, in that sense, would regard myself as having an attorney-client relationship with the Senate Republicans on that matter. You know about it because I disclosed it here. But I was not paid for any of that work. And, go read Sartre, Tom. He did believe – at least at some points in his often incomprehensible oeuvre – that the proper ends justified the means. But thanks for reading.

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