There are few political disputes in the last year that have proved more contentious than the decision of the Wisconsin legislature, after a protracted political struggle, to adopt reforms of the collective bargaining law for public unions. However, that political involvement would not be evident to anyone who read the decision of Dane County Judge Maryann Sumi, who decided that the applicable provisions of the Wisconsin open meetings law were violated, and, further, that the appropriate remedy for that violation was the invalidation of the statute.
The importance of this issue was evident from the opening sentences of the opinion which referred back to that most venerable of constitutional decisions, Marbury v. Madison to support the proposition that it is the duty of the judges to say what the law is, and to enforce it against all other branches of government.
At one level this proposition seems appropriate, but what is so odd is how Judge Sumi ran with that message. A look at the statute reveals that the primary sanction for a violation of the open meetings law is a small monetary fine of between $25 and $300 against the individual members of the legislature who participated in the violation. The clear implication seems to be that the statute itself remains on the books, even if the legislators who misbehaved are subject to this sanction.
The plot thickens a bit, because either the Attorney General (who is defending this legislation) or the District Attorney in the county where the violation took place may bring an action seeking various forms of legal relief including an injunction of the statute, which might cover this case. Nothing in the statute resolves the knotty question of whether the District Attorney of Dane County (where Madison is located) can move in the name of the “State of Wisconsin” if the Attorney General stands on the other side of the case, which is what happened here.
The complications only increase, moreover, because the violation of the open meetings law in no way requires the invalidation of any statute passed at that meeting. Rather that question is determined by an uncertain public interest standard which asks whether “the public interest” in the enforcement of the open meetings law “outweighs any public interest which there may be in sustaining the validity of the action taken.”
A test of this sort is fluid, to say the least, and exceptionally difficult to apply in a void, without any discussion of the merits of the law which is involved. Judge Sumi decided that the first interest outweighed the second, which I regard as a bit over the top, given that the lesser fines are trivial in comparison with the hefty sanction imposed in this case. Where a loose standard allows the court, if it so chooses, to override a law passed in regular form, it takes us a long way beyond Marbury, which essentially required a clear logical inconsistency between the command of the statute and the limitations in the Constitution. In this case the applicable constitutional provision reads: “The doors of each house shall remain open, except when the public welfare requires secrecy. “ Art. IV § 10. There is of course no secrecy interest here. But by the same token, there is nothing at all in the constitutional provision that makes invalidation the consequence of not keeping the doors of each house open.
Clearly, there is a political element at work in this case even though the subject matter of the legislation is nowhere discussed. My guess is that this decision will be overturned if only because an extra burden has to be placed on the District Attorney when the Attorney General is on the other side of the case. But if not, I suspect that the legislation will be reenacted in any event. Let’s hope that a quick and prompt appeal to the Wisconsin Supreme Court will resolve this question. I certainly want the statute to stand. But clearly an untested law moves in mysterious ways when the stakes are so high.